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THE

CORRECTED AND IMPROVED,

WHICH

HAVE BEEN DELIVERED FOR A SERIES OF YEARS,

IN THE

COLLEGE OF NEW-JERSEY;

ON THE SUBJECTS OF

MORAL AXB POLITICAL PHILOSOPHY.

THE FORMER PART EMBRACING,

I. The general principles of human nature considered as a subject of moral sciencei

II. The principles of ethics, or the moral relations and duties of men.

III. The principles of natural theology.

TV. And lastly, those of economies, or family relations, as preparatory to the consideration of
the relations and duties of civil and political life.

THE LATTER PART EMBRACING,

I. The rules which ought to regulate the conduct of men towards one another in a state of
civil society, and the means of enforcing those rules.

II. The rules and principles which give the form to the society or government itself, and
which direct its operations.

III. And finally, the rules which should govern the conduct of independent governments or
states to one another — the whole comprehending those general principles on the subjects of
jurisprudence, polities, and public law, or the law of nature and nations, with which every
man of liberal information in a free country ought to be acquainted.

1

BY THE REV. SAMUEL STANHOPE SMITH, D. D. L. L. D.

IN TWO VOLUMES.
VOLUME II.

TRENTON:

PUBLISHED BY DANIEL FENTON,

FOR THE AUTHOR.

JAMES J. WILSON, PRINTER.

1812.

w^

X

«; • ' ■

DISTRICT OF NEW JERSEY, ss.

BE IT REMEMBERED, That on the twenty-ninth day of August, in the thirty-seventh
year of the independence of the United States of America, Samuel Stanhope Smith, of the said
district, hath deposited in this office the title of a book, the right whereof he claims as author, in
the words following, to wit: "The Lectures, corrected and improved, which have been de»
livered for a series of years in the college of New-Jersey, on the subjects of moral and political
philosophy, by the Rev. Samuel Stanhope Smith, D. D. L. L. D. The former part embracing,
1st, The general priuciplesof human nature considered as a subject of moral science. 2d, The
principles of ethics, or the moral relations and duties of men. 3d. The principles of natural the-
ology. 4th, And lastly, Those of economics, or family relations, as preparatory to the conside-
ration of the relations andduties of civil and political life. The latter part embracing, 1st, The
rules which ought to regulate the conduct of men towards one another in a state of civil society,
and the means or eulorfing tnose rui„a. 2(L The n,)es ^ principle which give the form to
the society or government itselt,ai«I whicn tureci iu upri-aauiui °o, j«-™j finally, The rules
which should govern the conduct of independent governments or states to one anuiha — the whole
comprehending those general principles on the subjects of jurisprudence, politics, and public
law, or the law of nature and nations, with which every man of liberal information in a free

country ought to lie acquainted" In conformity totheact of the congress of the United States

entitled " An act for the encouragement of learning, by securing the copies of maps, charts, and
books, to the authors and proprietors of such copies, during the times therein mentioned," and
also an act entitled " An act supplementary to an act entitled an act for the encouragement of
learning, by securing the copies of maps, charts, and books, to the authors and proprietors of
such copies, during the timt therein mentioned, and extending the benefit thereof to the arts of
designing, engraving and etching historical and other prints."

ROBERT BOGGS,

Clerk of the District of JV\ Jersey,

LECTURES,

LECTURE XV.

OF NATURAL THEOLOGY.

(TOJNTEJNXS.

Of Natural Theology, wherein it consists, and its con-
nexion with the science of morals — The proofs of the
divine existence divided into two kinds, the scientific,
and popular — Mr Hume's idea of cause — Sketch ofDr
S. Clarke's demonstration of the being and attributes of
God — The popular mode of reasoning from the works
of nature to the existence, wisdom and power of its
Author. — Jin exhortation to study natural history par-
ticularly with this view.— .Proof of the same truth from
the general sentiments of mankind. — Proof, from the
absurdity of the reasons invented to account for the
origin of things independent of God. — Chance and dis-
order ignordntly ascribed to the works of nature. — The
attributes of the Deity — First, of the natural attributes,
spirituality, unity, wisdom, power, eternity, omnipre-
sence— Second, of his moral attributes, holiness, good-
vol. ii. jb

10

ness, justice. — Some ohjections to the divine goodness
on the score of the evils which exist in the world con-
sidered. — Of the evils which attend our entrance into
the world, and departure from it. — Of the justice of
God, distributive, and vindictive.

NATURAL Theology, which consists in the knowl-
edge of those truths which maybe discovered by the ex-
ercise of human reason alone, concerning the being and
attributes of find, is intimately connected with the sci-
ence of duty and morals. Among the strongest percep-
tions of our nature are those which indicate to us amoral
law to which we are subject, and render us susceptible of
moral obligation. From that sense of morality, which
has been already explained, results a profound conviction
of the existence of this law, and of a Supreme Law-
giver Avho imposes obedience to it by the authority of our
own internal sentiments, and by the reference whieh they
bear to his righteous judgment which they teaeh us to ap-
prehend. As reason brings from every survey of the works
of nature, irresistible demonstration of the existence of a
Deity, infinitely wise, powerful, and benevolent ; con-
science draws from our own internal feelings, the deep
persuasion of his being a most holy and righteous judge
of moral conduct. The conviction of these truths must
ever possess a useful influence on the morals of mankind.
The informations of reason, or the restraints of con

11

science, unsupported by this principle, would impose too
feeble a check on the force of irregular propensities, or
the impulse of unlawful passions. A vicious man, ac-
countable only to himself, would soon learn to overbear
the remonstrances of his own mind. For although an
atheist, educated in the midst of a religious people, may
be preserved within the bounds of a decent morality, by
respect for himself, or a prudent deference to the opinion
of the world ; yet if the belief of the existence of God
were eradicated from the public mind, the mass of the
people would esteem secrecy alone to be a sufficient justi-
fication of any action dictated by inclination. That use-
ful influence which public opinion now creates in favor of
virtuous manners, would on the prevalence of a general
atheism cease to exist, and the bands of society, which
are effectually maintained only by the public morals,
would hasten to be dissolved.

Natural theology, therefore, brings to view the most
powerful sanction of the moral law. It renders the law
itself more clear by discovering the source from which
it emanates : — inasmuch as the human mind, when sensi-
bly placing itself in the divine presence, becomes more
susceptible of the impressions of truth, — more ready to
admit its evidence, and more apprehensive of being mis-
led by the sophistries of error The theory of duty,

therefore, is naturally conjoined with that science which

12

js employed in demonstrating the existence, and unfold-
ing the perfections of the divine and infinite mind.

The proofs of the being of God have usually been de-
rived from two sources — the necessary nature of our
ideas — and the structure of the universe. The one has
been denominated the scientific, the other the popular
mode of proof; — or, in the language of the schools, rea-
soning a priori, and a posteriori. The former is reason-
ing from the cause to the effect, the latter, from the ef-
fect to the cause. Both these modes of proof rest on one
common principle, or necessary idea,— .that every effect,
or every thing which begins to be must have a cause of
its existence. It was one of Mr Hume's metaphisical pe-
culiarities, to deny the idea of causality ; maintaining,
that, in contemplating the production of any effect, we
have no other notion than of one event succeeding another.
This position, which was intended to destroy our belief in
creation, will find its refutation in each man's own clear
and natural perceptions. Can any person declare that his
ideas of succession, and of cause are precisely the same ?
It may be difficult, or impossible to give an accurate defi-
nition of the difference, because they are both ideas of the
simplest kind, but may be perceived by the plainest un-
derstanding to be perfectly distinct.* Admitting, then,

* The idea of cause has, not improbably, been derived ori-
ginally from some active operation of our own will upon some

la

the reality of the idea of cause, and the truth of the prin-
ciple, that whatever hegins to he must have a cause, the
necessary consequence is, either, that the universe con-
sists of an eternal succession of causes dependent one upon
another, or we must look for its existence in some first
cause, eternal, unproduced, the source of all motion and
power in the operations of nature, the cause of whose
being is to be found only in itself, and the necessity of its
own nature. The idea of an eternal succession of events,
each frail and imperfect, and all dependent one upon
another, involves too evident an absurdity to be admitted
by philosophy.

We are obliged, therefore, to adopt the only alterna-
tive that remains, — the existence of a first cause, origin-
al, and independent, from which all things else have
been derived. If we ask whence then exists this first
cause? Being original and underived, we can find no
reason for its existence but in the necessity of its own
nature. A being existing by necessity of nature, can
never begin to be; it must be eternal. For the same
reason, it must be unchangeable ; for if any change could

part of our muscular system, producing an exertion of force or
strength which is immediately followed by an effect evidently
occasioned by that act. I by no means, however, give this as an
adequate definition or account of the idea of cause, but only sug-
gest it as a probable occasion of originally exciting the idea in.
our minds.

14

take place, there must be something in it which was not
necessary. Infinity must be equally predicable of the
same being; for how should it be limited when nothing
previous existed to bound it ? or how should necessary
existence be confined to a circumscribed space? The
unity of the divine nature is no less a certain conse-
quence of this principle. Two equally necessary and
infinite beings could serve no useful purpose that could
not be fulfilled by one. — There being no reason, there-
fore, for the existence of a second, the idea, on all the
rules of reasoning in sound philosophy, ought to be
rejected. Besides, two beings equally infinite, must oc-
cupy the same space,* — being equally the cause of all
things which exist, they must possess the same perfec-
tion; they must be, to every purpose of existence, the
same being. This first and sole cause of all things in the
universe must also be almighty ; for whatever can exist,
can exist only by him. And, finally, he must be all-wise,
as knowing the natures and powers of all things possible,
for nothing is possible but by him, and every thing is
possible that he wills.

This is a very brief and partial sketch of the scientific
mode of reasoning, or reasoning a 'priori on this subject.
The most profound and masterly example of it which

* See three letters of Dr Clarke on the relations of the
Deity to space, and duration.

15

exists perhaps in any language, you will find in Dr
Samuel Clarke's demonstration of the being and attri-
butes of God. But I confess these subtle arguments of a
rery refined speculation, are little calculated to produce
any profound and permanent eonviction on the mind.
The extreme abstraction of the ideas, although they do
great credit to the ingenuity of that celebrated author,
can be comprehended only by a few reflecting men ; and
the most speculative philosopher finds the effort to grasp
them tend very much to exhaust the sensibility of the
heart, and weaken their practical impression.

The second, or popular mode of reasoning, from the
effect to the cause, is more simple and obvious. It is a
species of argumentation which naturally offers itself to
every man as soon as he opens his eyes upon the face of
the world. It is a kind of evidence that reaches the
simplest understanding, and becomes more luminous and
interesting in proportion as Ave extend our observation
and enquiries into the system of nature. When we
behold its order, variety and beauty, the proportion and
correspondence of all its parts, the evident demonstra-
tions of wisdom and design, especially in the animal and
vegetable worlds, in the structure of the earth, in the
planetary system, and, as far as we can judge, through-
out the universe, can we forbear to acknowledge a wise
and intelligent cause which has planned and arranged

16

the whole ? an omnipotent cause which has given exist-
ence to this immense and various structure ? and an in-
finite providence which every where presides over its
operations? The details of this argument are too ex-
tensive to he minutely pursued in such an elementary
system of morals as that in which we are at present
engaged. They are, perhaps, not necessary to convince
you of that first of truths of which you are already
deeply persuaded, and that meets you at every glance
which you cast over the surface of nature. Yet, in your
private studies, I cannot too strongly recommend it to
you diligently to pursue your researches into the natural
history of the universe, expressly with this view to
assemble before the mind the multiplied evidence which
it contains in every part, of the existence, and universal
operation of a most wise, beneficent, and almighty
power which pervades, and presides over the whole. The
beauty, variety, and interesting nature of the study will
abundantly reward your pains. But it will further be
productive of a double advantage ; in the first place, by
giving additional confirmation to a principle of the high-
est importance to individual virtue, and to the happiness
of society, which many occasions in the intercourse of
life, the momentary prevalence of irregular passions*
and at length even the fallacious subtlety of sceptical
speculation, might frequently tend to impair : and in the

17

next place by producing a more profound and habitual
impression of that truth on the heart. We may live in
the midst of the most demonstrative evidences of it,
while, at the same time, the attention of the mind may,
from a variety of causes, be little attracted to its con-
sideration. The evidence which now and then glances
on the understanding, may not be affected by any doubt ;
but it is too superficial and transient to make any useful
impression. It is only when it is often presented to view
when the thoughts are frequently recalled to its con-
sideration, when they ruminate upon it, that it becomes
mixed and blended with the habitual contemplations of
the mind, and the deep persuasion is lodged there as a
constant spring of pure and rational devotion, and the
most powerful motive of virtuous action. It is with this
intention that I would recommend to you an extensive
study of natural history as the surest basis, when pru-
dently investigated, of natural theology. It is a study,
likewise, which peculiarly contributes to purify, exalt,
and delight the mind ,* and along with the charming en-
thusiasm of piety, to strengthen the most solid founda-
tions of virtue, while, to use an expression of Malbranchc,
" it sees all things in God, and God in all things." Or
in the more beautiful and picturesque language of the
English poet — while in every part of nature it continu-
ally contemplates him

vol. ii. G

IS

Who chang'd thro' all, is yet in all the same,
Great in the earth as in th' ethereal frame,
Warms in the sun, refreshes in the breeze,
Glows in the stars, and blossoms in the trees ;
Lives thro' all life, extends thro' all extent,
Spreads undivided, operates unspent.

Pope's Essay on Man, e/i. 1. 1. 267 — 274.

This argument is admirably illustrated by the famous
Genevan philosopher Bonnet, and bv those very respecta-
ble English writers Derham and Ray. But, perhaps, no
author has treated it with more closeness, perspicuity,
and irresistible evidence than Dr Paley in his treatise on
natural theology. You see there that mechanical con-
trivance, that correspondence of parts, that adaptation of
means to their respective ends through all the works of
nature, which are the most unequivocal indications of
wisdom and design, as well as of power and goodness in
its author. i( Final causes, says a very judicious writer,
may be considered as the language in which the existence
of God is revealed to man. In this language the sign is
natural, and the interpretation instinctive."*

Another argument to the same end which may be con-
sidered, either as different in its nature from the preced-
ing, or as only shewing in a newr and strong light its evi-
dence and certainty, is derived from the universal con

* Ferguson's institutes, part 3d. chap. 1, sect. 2d.

19

eurrence of all nations in this important principle, the
existence of God.

The general sentiments of mankind point to truth.
They are commonly intuitive, or necessary conceptions
arising immediately from the bare inspection of nature ;
or forcing their evidence upon the mind, like the first
truths of science, simply by the comparison of our own
ideas. The concurrence of all nations, therefore, in the
belief of the being of God is a proof either, that it is a
native sentiment of the human heart resulting from the
constitution of our nature, resting on the same foundation,
and entitled to the same credit with any other of our in-
ternal sensations ; — or, that it is a conclusion so clearly
and necessarily flowing from the appearances of nature as
to be obvious equally to the wisest and most uncultivated
mind ; the rapidity of the induction giving it the appear-
ance of an instinctive principle.

To this proof it is not a sufficient objection, that many-
nations have acknowledged a multiplicity of gods, and
that, in all nations, the multitude have entertained un-
worthy conceptions of the divine nature The natural

sentiments of the human mind may be corrupted ; or,
being left in their original and uncultivated state, may be
liable to many errors through ignorance. The principles
of taste, notwithstanding their acknowledged foundation

20

in nature, may, in the same manner, be perverted by de-
fective or erroneous culture ; yet their error, or corrup-
tion, instead of demonstrating that there are no such prin-
ciples, is, on the other hand, a proof of their existence.
Many nations, misled by the analogy of human govern-
ments, conceiving that the divine administration might be
conducted by subordinate agents, by a very natural in-
firmity of the human mind, elevated each local and ima-
ginary divinity to the throne of divine worship. But all
mankind have ever acknowledged one Supreme Deity :
and the multitude of subordinate officers, if they may be
called such, which error has attached to him in his gov-
ernment, does not destroy the evidence of the principal
and original sentiment, that God exists. Our object at
present is to establish this single truth. And this truth is
not impaired by diversity of opinion with regard to the
mode of hi? administration, or the nature of his perfec-
tions. These ideas requiring greater precision of thought,
and greater compass of reasoning, one man, or one nation,
according to the advances they have made in the cultiva-
tion of science, may reasonably be supposed to have
formed more just, or more inadequate conceptions of
them, than another.

The truth of the divine existence is confirmed, if such
primary and palpable truths can receive additional con-
firmation, by the absurdity of the causes to which atheists

21

Lave been obliged to resort in order to account for the
origin of things. One of their first principles is that
matter is eternal, and though senseless and inert, contains
the essence of all order and motion. Another, that the in-
telligence which evidently reigns in the universe, is the
result of material organization. And another still, not
less extraordinary than either of the preceding, that, from
the accidental collision of atoms, have been formed
globes that, from some interior impulse, have thrown
themselves into orbits constructed with the most perfect
mathematical exactness, and governed by laws which en-
sure undeviating constancy to their movements. From
the same accidental collision roots and seeds have been
generated, whence the whole vegetable world has been
evolved, and yearly reproduced. At this age of philoso-
phy, one would think that such principles must carry
their own refutation in the very terms of their statement.
Look on any mass, or congeries of matter, and let the
plainest, or most ingenious understanding decide if any
arrangement of its atoms, according to any known laws of
material action, could sublimate it, above all could enable
it to sublimate itself into sensation and reason? Or is it
possible that, if one lucky cast or collision among in Unite
milions, should have formed an animal or vegetable, it
should have been so framed as to be capable of throwing
from itself continually a similar assemblage of organized

atoms, "while not another extraneous cast of the same kind
should ever succeed in forming a new body ?

But if an atheist ask us why, since we admit the ex-
istence of a wise intelligent cause only to exclude disor-
der and chance from the world, are there so many un-
seemly examples of both in the essential structure of
things, and in the revolutions of what we call providence ?
It is, as I conceive, a sufficient answer, to deny the ex-
istence of either, and to challenge an antagonist to pro-
duce his instance. — For what is chance ? Only a name
to cover our ignorance of the cause of any event. Nothing
can happen by accident in the government of an infinitely
wise being. All events depend upon a certain concatena-
tion of causes. The cast of a die is as certainly governed
by the laws of matter and motion as the greater move-
ments of the planets. What is disorder in the works of
nature ? A name which our weakness and imperfection
presumptuously imputes to the wisest designs of Heaven.
To judge perfectly of the order and regularity of the
universe we ought to be acquainted with the structure of
the whole system, and the particular end of every move-
ment. Without this knowledge, imaginary irregularities
will ever exist ; but they will exist only in the imperfec-
tion of our own understanding. To the eye of ignorance
what is beyond its own ken will look like confusion. —
This is certain with regard to the works of nature, that

2.3

in proportion as her laws have been more clearly de-
veloped, and her operations more distinctly understood,
many of those phenomena which formerly were esteemed
to he irregularities are now discovered to be governed by
the most wise, certain, and permanent laws. Even those
stellar deviations, which were once thought to indicate
the mutual approach of their spheres, and to point to
some period of ultimate destruction, have been discovered
by an illustrious astromomer* to have a relation to one
or more great centers of motion indicated by their ap-
proximations, and recessions, by which according to the
unvarying laws of central forces, they only the more cer-
tainly provide for the perpetuity of the universe.— One
conclusion will obtrude itself on every reflecting mind:
that, since the greatest portion of the works of nature,
contain, even to our imperfect reason, the most obvious
indications of intelligence, design, and goodness, if there
are any parts which we are unable to interpret in perfect
coincidence with the general system, this ought to be as-
cribed solely to the narrow sphere to which our intellec-
tual vision is circumscribed. If a plain but intelligent
man were admitted to the magazine of a skilful mechani-
cian in which he was witness to the most admirable proofs
of the artist's intelligence and skill, what could he con-
clude on inspecting a more complicated machine the in-

* La Place.

2i

tricaey of which he could not possibly comprehend, but
that the seeming confusion which appeared to his senses,
was attributable only to the imperfection of his own ideas ?
He could not doubt but that the same wisdom pervaded all
the works of the same author.

It has been frequently and justly remarked that the
universe is governed by general and constant laws which
never change their operation according to the desires of
men. or the convenience of particular parts of the system,
which sometimes appear to be productive of accidental
and partial ills. A tempest here, a drought there, a con-
tagion, or an earthquake, may involve individuals in dis-
tress— but the fixed and unvarying laws of the physical
world are among the greatest blessings to mankind.
Among other benefits, they lay a foundation for the ex-
istence of the most useful sciences, which could have no
principles on which to rest in a providence of expedients
and accommodations to individual convenience. They
serve to awaken enquiry, to exercise ingenuity, to encour-
age industry, to afford principles on which to ground a
prudent foresight and precaution, and to promote the ex-
ercise of all the virtues which are assisted by the stability
of nature. For a clear and luminous illustration of the
utility of general laws, and for a judicious explanation and
justification of the apparent and partial ills which result

25

from them, you will again have peculiar satisfaction in
consulting Dr Paley's work on natural theology.

I proceed next to consider the attributes of the Deity
more distinctly, or separately.

The divine attributes will not require an extensive il-
lustration ; for, when once his existence is acknowledged,
they recommend themselves so obviously to the common
sense of mankind as hardly to admit of any controversy :
except with regard to those natural events which, in their
first aspect, seem contrary to our apprehensions of his in-
finite goodness. These will of course require some addi-
tional considerations, after having proposed a general
theory of the perfections of the Supreme Mind, to solve
the difficulties which may occur on this subject to the re-
flections of a pious theist.

The attributes of God, then, may be arranged under
two heads — the natural and the moral. — In the former are
comprehended his spirituality, unity, eternity, omnipres-
ence, power, and wisdom $— under the latter, his holiness,
justice and goodness.

The spirituality of the divine nature, is a property

opposed to every form and refinement of matter ; and

may be regarded as distinguishing the essence of the

Supreme Mind from that fine but powerful influence, the
tol. ii. »

26

result of the material organization of the universe, which
some philosophers have substituted in the room of Deity,
and made the cause of a universal necessity, or fate. It
is opposed, likewise, to the opinion of those who have
held the Deity to be the soul of the world ; that is, a
certain power, which, although intelligent, is still only a
refinement of matter, a kind of spirit, or gas thrown off
from the infinite system of its motions, or its original
fermentations.

All just philosophy has considered matter as essential-
ly inert, and incapable of beginning motion. Spirit, as
we learn from our own experience, possesses a self-
motive power, and the power of giving motion to other
things. The existence, therefore, and the movements of
the universe, are proofs of an original spirit who formed
it, and gave it that impulse, and that system of combined
motion by which its order is still preserved.

The only knowledge which we have of spirit is de-
rived from reflection on our own minds, the essence of
which we conceive to lie in thought, and volition. But
it would be impious to imagine that we can thence form
any adequate conception of the Divine and Infinite Spirit
from whom all things proceed. By this term, therefore,
applied to the Deity we can mean only to express a sub-

27

stance wholly different from matter, simple, uncon>
pounded, essentially active, and intelligent.

The unity of the Divine Nature is deducihle from this
reflection, that we see evident proofs of the existence of
one God, and we see no evidence of more than one. It is
contrary, therefore, to every principle of just reasoning
to admit a plurality. This conclusion is strengthened by
that unity of design apparent in all the parts of nature.
It indicates one author, one purpose, one end. How far
he may commit the government of particular districts of
the universe to subordinate agents, in order to employ
their activity, and exercise their virtues, we have no
grounds on which we can form a rational judgment.
Even conjecture, therefore, ought to be silent concern-
ing it, lest we should unawares awaken a degrading
spirit of superstition. On subjects so remote from the
sphere of human intellect and observation, in no depart-
ment of science has conjecture or hypothesis ever led
philosophy one step nearer to truth. It is even doubtful
if the erring lights of false science do not lead the mind
farther astray than the torpid dulness of absolute
ignorance.

Of the almighty power, and infinite wisdom of tlie
Deity there can exist no Aubt in the minds of those
who acknowledge his being. No more can we doubt of

2S

his eternal existence, and his universal presence, al-
though we are not able to form distinct and definite ideas
concerning his relations to infinite duration and space.
I shall, therefore, not consume your time in attempting
to solve the many abstruse, and probably useless, and, to
human intellect, inexplicable questions, which have been
raised on these subjects by ingenious men : but pro-
ceed to consider his moral attributes, holiness, goodness
and justice.

Holiness is a term used chiefly by divines, and bor-
rowed from the sacred scriptures, to express the purity
of the divine nature, and its infinite distance from all
moral imperfection. It is perhaps the best and strongest
word in our language to convey the idea of his unchange-
able love of the eternal and essential rectitude of that
moral law which he has prescribed to his rational
creatures, whose outlines he has traced upon the human
conscience, but the perfect rule of which is to be found
only in his revealed word. And it seems further to carry
in its meaning, not only a pure and immutable love of
rectitude, but an infinite abhorrence of vice ; that is, of
the omission or violation of the duties of the moral law.
But, besides this peculiar meaning of the term as ex-
pressing a single attribute of the Divine Mind, it is
often used in a more comprenensive sense, to express the

29

aggregate, and the most complete idea of all bis moral
perfections.

By the attribute of goodness is meant to be expressed
the disposition, or tendency of the divine nature to im-
part happiness to the creatures he lias formed, in a way
accommodated to their respective states of being. This
attribute we ascribe to the Deity from the tendencies
to benevolent affection which he has implanted in the
human breast; — and from that order, harmony, and
beauty which exist in the whole structure of the uni-
verse, and which so naturally and strongly associate
themselves with the ideas of beneficence in their author,
by the happiness they create in those who contemplate
them. It is farther confirmed by the existence of so
many tribes of creatures capable in a high degree of
pleasurable sensation, and actually enjoying it in different
ways. All these facts contribute to impress an irresisti-
ble conviction of the benevolence of the Creator. Whea
we contemplate an individual animal, what an immense
complexity of parts do we observe combined in one
system, all contributing to the preservation and enjoy-
ment of the creature, which manifestly indicate the will
and intention of the author; and shew the pains and con-
trivance, if these terms may be applied to the Deity, which
he has used to render that animal comfortable and happy.
But, when we behold creation filled with innumerable

so

species of being, and, under each species, innumerable in*
dividuals, down to the minutest insect tribes, in which we
severally discern the same multiplicity of organs, and
the same systematic combination, and subserviency to
the purposes of enjoyment, how does the evidence of the
divine benignity and goodness rise in our view ! The air,
the earth, the sea are full of animated and happy beings.
Men often overlook these examples of benevolent design,
sometimes from not perceiving the immediate utility of
the creatures in the system of creation, and sometimes
from their extreme minuteness. But the minutest insect
is equally with the largest or most rational animal,
susceptible of the most exquisite sensations of happy
existence. And in the eye of the infinite being,

Who sees with equal eye, as God of all,
A hero perish, or a sparrow fall,

there is much less difference between an insect, and a
man, than our vanity inclines us to conceive.

It is well remarked, by many ingenious writers, that
the beniguity of the Deity is visible not only in the
structure of the animal system subserving so admirably
the purposes of preservation, comfort, and defence; but
in annexing such pleasant sensations, beyond what mere
necessity would have required, to the exercise of the
different faculties and powers of animal nature. Hunger

31

alone might have prompted it to eat, an operation which
would have been sufficient for the sustenance of life.
But the Creator has added to its food a relish, which
seems to have had no other purpose but to increase the
pleasure of existence. The objects around us in the
structure of the world might have been applied to all
the purposes of utility, although they had not possessed
that beauty, fragance, or harmony, which afford such
superlative charms to the senses, and the imagination.
There certainly never could have existed such exquisite
adaptations of objects to the senses, and of the senses to
their objects, if the Creator had not intended them for
the ends of animal, and especially of human felicity.
Not to mention in man his superior powers of moral,
intellectual and social enjoyment, which open a much
wider and nobler field of happiness if we had leisure to
survey it.

But it is not so necessary to prove the reality of the
divine goodness, which is borne in so many examples on
the whole face of nature, as to account for some ap-
pearances, and to remove some objections which have
been thought to contradict it in the order of divine provi-
dence. These consist in the numerous evils which are
evidently mingled with good in the economy of the
world.

•32

The preponderance of good over evil In the general
order of things, is acknowledged to be manifest and great.
But the objectors reply, that if God were perfectly
benevolent, and, at the same time, omnipotent, lie would
not have permitted the existence of partial evil. This
is pronouncing on an infinite system from our own con-
tracted views.-— Can we say that, in a universe, benevo-
lently constructed, there ought to be no gradation of
being? Or, if gradation be admitted in perfect con-
sistency with the infinite benignity of the Creator, is it
not conceivable that a creature of superior powers of
intelligence and enjoyment, may, by a certain admixture
of pain, be brought in the scale of happiness to the grade
of one of inferior powers, but exempt from suffering,
and who shall have no complaint to prefer against the
benevolence of providence ? The reflection may apply to
a nation, to a species of being, to a world. How far
superior, then, may this world be, with all its sufferings,
to other systems which may have no such evils to allay
a happiness which, however, may be regulated on an
inferior standard of sensibility, or of intellect ! Would a
man of high sensibilities, or of high intellectual powers,
though they may often be the occasion of many errors,
or of keen anguish, be willing to forego their pleas-
ures, in order that he might be reduced to an apathy
that would render hira insensible to suffering? Let us

33

balance our goods against our evils, therefore our suf-
ferings against our enjoyments, and consider ourselves
as completely happy in that grade of felicity that is
marked jby the surplus of the one above the other. By
such a calculation, how might mankind extinguish every
complaint of the evils of life, and justify perfectly the
benignity of the Creator ? The conclusion, therefore,
which each individual ought to frame with respect to
himself, a true philosopher may justly infer for the
whole species; unless any man should be so foolish as to
imagine that existence alone gives him a claim on the
beneficence of his Maker for the highest grade of
felicity.

But why, it may be asked, should we be left to
estimate our grade in the scale of being by the surplus-
age of happiness above pain? Or, why should pain exist
at all in the system of a benevolent being? — Satisfac-
torily to answer these and a thousand other enquiries
that might be instituted on this subject would probably
require a knowledge of the nature, and the infinite rela-
tions of the universe, which none but the Deity himself
can possess. We can, therefore, expect only from reve-
lation the information which we desire, as far as be is
pleased to impart it. But while we are compelled to

resort to the feeble lights of our own reason alone fop
vot. ii. t;

h solution of the difficulties which spring out of the
combinations of an infinite system, Me must be contented
with such probabilities only as it can yield us.* — If, in
the scale of existence, then, there be a place for such a
being as man, with just such a measure of intellect, and
sensibility, and with just such principles of action, con-
tinually requiring excitement and correction ; and es-
pecially, if it be conceived that he is placed in the present
world, in a state of probation and discipline for a future
period, and a higher condition of existence, a supposition
which to philosophy is as probable, as to religion it is
certain, may not all the pains which enter into the moral
culture of tbis life, be regarded as the discipline of a wise
and gracious parent, and, therefore, as essential parts of
a most benevolent system ? Let us contemplate the rela-
tion which the pains necessarily incident to human nature,
as it is now constituted, have to the improvement of its
powers, and consequently to its happiness — The wants
of man contribute to rouse that industry, and habitual

* Rejoicing, however, that when we have explored reason
to the utmost, we, as christians, still enjoy the superior illumina-
tion of the sacred scriptures, whence, if we cannot derive such
lights as will satisfy every enquiry of an ambitious curiosity,
we may, at least, draw competent satisfaction for a humble and
rational piety ; particularly with regard to this great question,
why human nature exists in its present state of imperfection,
requiring the corrections, and discipline of the pains and suf-
ferings which we see attached to it ?

35

exertion of all his faculties of body and of mind, on
which their vigor and perfection principally depend.
A paradise where all his wants should be spontaneously
supplied from the abundance of the soil, and all his
senses gratilied by its fragrance, its beauty and luxuriant
sweets, would deteriorate the human character, and sink
the noblest creature in the world into a lazy, torpid, and
vicious animal. The happiness, no less than the improve-
ment of our nature, lies chiefly in constant and useful
employment, stimulated by these necessary wants. En-
joyment seldom yields pleasures equal to those which
arise out of the activity requisite to procure it. The
very efforts excited by pain and want, or by the appre-
hension of them, often produce a satisfaction, or diver-
sion to the mind which far overbalance their evils. Want
whets ingenuity ; danger ar*d suffering call into operation
the virtues of courage and fortitude, that communicate a
character of grandeur and nobleness to the mind which
often raises it superior to the ills of life. And labor,
however it might be the curse of man fallen from the
perfection of a superior nature, is beyond a doubt the
blessing of his present existence. Reflections of a similar
nature might arise from an attentive consideration of
every particular evil to which human life is exposed. *v

And, iu a moral point of view, how much more justly
may we regard them as a part of the benevolent disci-

S6

pline of our heavenly Father ? They are correctors of the
passions — they assist the habits of reflection, — and often
recal the mind from pursuits injurious to its virtue and
its true interests.

But, instead of examining in detail the various evils of
life, and shewing how the goodness of God is affected in
permitting their existence, I shall select only a few ; be-
lieving that, if, in these, the benevolence of the divine ad-
ministration can be justified even to our limited under-
standing, a hint may be suggested, or a clue given by
which its vindication may be pursued in other cases. —
Take for examples, the circumstances attending the man-
ner of our entrance into the world, and of our departure
from it, which have been thought to involve serious ob-
jections against the benignity of the Creator. With re-
gard to the former it may be fairly maintained, that the
pains of bearing, nursing, and educating children, with
the diseases and dangers of infancy, which seem, at first
view, to be peculiar afflictions on the human race, will be
found, on examining their connexions and all their rela-
tions, to be among the chief causes of the existence of
society, and the felicity of social life. If children, like
the young of other animals, were able to run as soon as
born, and to feed themselves, with almost no dependence
on the care of a parent, the powerful ties, and sweet en-
dearments of parental affection, and of filial duty, would

37

be unknown. The union and happiness of domestic soci-
ety would be dissolved ; and civil society, of which the
domestic is the germ and the principal support, could not
exist. Man would be a solitary and ferocious savage.
The facility of rearing children, and their independence
on a parent's care, would give the strongest encourage-
ment to a vagrant and licentious concubinage, destructive
of all the virtues, and of the dearest interests of human
nature. Besides, the diseases of pregnancy, as human
nature is now constituted, and the pains and dangers of
child-birth, serve to endear the parents to each other, by
the weakness, tenderness, and dependence of the mother ;
by the honor, generosity, and sympathy of the father ;
and an hundred fold to endear the child to the parent.
And it is an acknowledged principle in human nature,
that the troubles and continual solicitudes of nursing and
education, together with the necessary diseases and haz-
ards of infancy, greatly augment the strength of parental
attachment, and lay the most firm and lasting foundations
of the unions, subordinations, and harmonious affections,
first of domestic, and afterwards of civil society. In these
pains, then, which have been selected as specious objec-
tions against the benignity of the divine administration
of the government of this world, we find some of the
principal sources of human happiness.

38

As to the manner of terminating the present state of
existence by death, the necessity of it arises out of the
structure of our nature. Death is the only way of giving
to successive generations the means of existence. If this
part of the plan of divine providence must be changed,
the whole order of life must necessarily be changed with
it. There could be no such creature as man in the scale
of being. The institution of the sexes must be destroyed
— the multiplication of the race must cease. The modes
of subsistence on the products of the earth, which can
sustain only a definite number, must be done away; and
with these, as the whole state of human life is connected
together by a close unbroken chain, must cease the ope-
rations of agriculture, the interchanges of commerce, and
the entire system of the present occupations and pursuits
of men. Man himself would be the first to object to such
a new order of things. — If death, then, be a necessary
part of the human economy, and to man himself it would
be undesirable to change it, if it must be accompanied
with so many other changes, still more unfriendly to the
wishes and the comfort of mankind, the only question that
remains, is, in what manner it may be best accomplished
so as to attain the most useful ends of its institution ?~—
Even if the whole of human existence were to be termi-
nated by death, this last act of our being, so justly formi-
dable to our frailty and imperfection, is but a momentary

39

pang, which has been far overpaid by the pleasures of
life ', but if, as religion assures us, and philosophy ren-
ders probable, this life is only a period of discipline and
probation for another state of being, and death is the
avenue through which we must pass to it, certainly no
method of approaching that decisive crisis could be
imagined more beneficial than that which exists of at-
taining every good moral end connected with it — of making
the descent to the grave easy to the virtuous — of im-
pressing a salutary but not oppressive fear on all, as a
useful restraint from vice — of preserving the mind, by its
extreme uncertainty, always vigilant and attentive to the
discharge of every duty, which is the best preparation for
a tranquil exit from life — and finally, of inducing it to
hold its present pleasures in a continual state of obedient
resignation to the will of God, in the hope of exchanging
them for such as are higher and more perfect.

To pursue the vindication of the divine goodness in the
introduction of other physical evils into his general ad-
ministration of the government of the world, would to
you, I trust, be unnecessary.* Of the moral evils which

* On the physical evils incident to the animal creation, and
particularly on that order of natui'e which has destined the
weaker part as the prey of the more powerful, see many judi-
cious reflections in Dr Paley's natural theology near the con-
clusion.

40

affiict the world, their origin, and their cure ; and how
they are made to illustrate the benignity and mercy of
God to mankind, the only true, and satisfactory account
is to be derived from revelation. They arise from an
abuse of the passions, and of the moral liberty of man ;
but reason would be deplorably at a loss to find her way
in the maze of doubts, and perplexities, which attend
their existence in the system of a benignant Deity, if
revelation did not put a filament in her hand, or extend
a taper before her footsteps to conduct her through the
labyrinth. This belongs to the theological chair.

The only attribute which remains to be considered is
that of justice. It is an invariable determination in the
Divine Mind to render to all his creatures according to
their works; — to the virtuous, reward, — to the vicious,
punishment. This attribute we ascribe to God, from the
dictates of conscience, and the sentiments of justice in
our own breasts. — As philosophy delights to trace the
most complicated effects, to the simplest principles,
justice may, perhaps, be considered as only one expres-
sion of infinite benevolence, in which, by proper cor-
rectives, and restraints and examples, the injurious
effects of the passions may be prevented, and individuals
deterred from seeking their own enjoyments, by the
sacrifice of a greater good in violating the general laws
of order and happiness.

41

Justice has, by divines, been distinguished into two
kinds, — distributive, and vindictive. The former has
been already defined, and may be applied for the re-
formation as well as punishment of the offender; the
latter is conceived to be the infliction of punishment on
vice simply for its own intrinsic demerit, without respect
to reformation, or any ulterior regard to a farther good
end, except the general good of the universe. Conscience,
in the nature of its reprehensions, makes us perceive
that guilt deserves such infliction; and in its anticipa-
tions, in consequence of some atrocious acts of iniquity,
often leads the criminal despairingly to fear it. These
facts appear to indicate that the distinction has a real
foundation in nature. And in these apprehensions, pro-
bably, we discern the source of those bloody rites of
superstition which, on so many pagan altars, have
dishonored the name of religion.

On this subject a theological question has been raised
of great importance to religion, whether in consistency
with the holiness and justice of the divine nature, the
violation of the moral law, by any creature, be pardon-
able without a complete atonement, or full execution of
its penalty? If justice bean essential attribute of God,
and its claims be as necessary as his existence, the for-
giveness of an offender can never be a gratuitous exer-

vol. ii. F

42

tion of mere mercy. From this principle results an in-
ference which is deeply laid at the foundation of the
christian religion; the necessity of complete atonement
to the violated law, and vindication of the offended per-
fections of God, in the person of a mediator perfectly
adequate to render this satisfaction, in order to the
exercise of mercy and forgiveness to the human sinner.
— But the discussion and determination of this question
also, 1 refer to the decision of another chair.

43

LECTURE XVI.

OF THE IMMORTALITY OF THE SOUI.

The only certain evidence of this truth to be derived from
revelation — Reason can accumulate a variety of proba-
ble arguments to support her hope. — Many faculties in
human nature which would perish without attaining
their perfection unless there were a future state in
which they should be unfolded. — The immortality of
the soul an article of universal belief in all ages.—*
This not the effect of artifice and intrigue, but of an
original principle in human nature.— Not sujjicient
objection against the universality of this principle that
some philosophers have been found who have denied it9
and some nations tvho have blended it with many errors*
<— Another argument found in the desires and hopes of
good men, and the fears of the vicious, especially at the
approach of death. — The effect of the disbelief of this
doctrine on the public morals — The unequal distribu-
tion of providence in this life.— The nature of our
future existence.

IT is not sufficient that we lay a foundation for the
knowledge of the theory of virtue in the knowledge of
the general principles of human nature, unless we can,

at the same time, propose motives to its practice that by
their grandeur and interest may be able to overcome
those temptations to the dereliction of our duty which
are continually springing up in the heart amidst the
errors of the passions, or assailing it under the masque
of the pleasures of the world. With this view I have
already offered to your consideration the evidences of the
being and attributes of God, from whom emanates the
law of virtue, and that structure of things in our nature
and in the universe, which indicates the law to our
reason, that the authority of his command, the con-
sciousness of his presence, and the apprehension of his
judgment, might add to the inward sentiments of con-
science their most powerful sanction. With the same
view I shall now propose to you those general arguments
which we derive from reason for the immortality of the
soul. The authority of the law of virtue would be very
feebly felt by the greater part of mankind, if the ex-
pectations, or the apprehensions of existing after this
life were not shewn to rest on at least probable founda-
tions. WTe must confess, however, that probability is the
utmost which reason has been able to attain on this in-
teresting subject. We must look for that full and clear
persuasion on which the soul can repose with tranquil
assurance in the midst of affliction, and at the approach
of death, only in the sacred scriptures. But the human

45

mind, in its anxious longings after immortality, is
inclined to make the most of those feeble lights which
reason holds out to encourage its hopes. And Cicero
could only say, but he says it with the enthusiasm
natural to a virtuous mind, that if he were deceived in
cherishing the hope of an immortal existence, he wished
not to be aioakcned from so agreeable a delusion. And
Socrates, in his last conversation with his friends, just
before drinking the fatal hemlock, thus took his leave
of them, — you go to your ordinary occupations, I to my
fate; which of us shall enjoy the happier lot is known
only to the gods.

The christian revelation has produced such a deep
and general persuasion of this doctrine in the minds of
its disciples, as has induced a common belief that the
evidence which reason yields in its support, is much
more direct and clear, than, on the most fair and candid
examination, it will be found to be. As it is imparted to
us by the author of our holy religion, it is closely and
inseparably connected with the doctrine of the resurrec-
tion of the body, of which his own rising from the dead
is the great example, and the proof. Its evidence, there-
fore, rests simply in the word and promise of the
Saviour. — There are, however, such strong and rational
probabilities, drawn both from the physical and moral
principles of our nature, as merit the most serious atten-

46

tion of the philosopher, and independently of the authori-
ty of revelation, are calculated to administer the con-
solations of hope to a virtuous mind. The physical prin-
ciples on which we may be entitled to build any hope,
have been already stated in the sixth lecture of this
system. The moral reasons which may induce an assent
to the same truth, I proceed now to lay before you.

In the first place, then, if the present were the only
state of human existence, the designs of the Creator in
the formation of man would seem to be in a great measure
frustrated ; or they would not be conformable to the usual
operations of his wisdom. We would behold the noblest
being with which we are acquainted, just begin to evolve
faculties which are never permitted to reach their full
vigor, or to display their full beauty. Man is evidently
possessed of talents which are progressive to an indefinite
degree of improvement. Yet, no individual has ever car-
ried any one talent, and, much less, the whole system of
his natural powers, to the highest perfection of which
they are susceptible : and less still has the whole race
approached near to that ultimate point in the scale of
being to which they are manifestly capable of arriving,
and appear, in some period of their progress, to be des-
tined. To arrest them, then, in the midst, or rather in
the commencement of their career, when they are only
just beginning to display those capacities which they

47

shall never fully unfold, seems hardly conformable to
our most reasonable ideas of divine benevolence and
wisdom. All other things which come under our cogni-
zance in this world, have a point of maturity, that is the
highest of which their natures are susceptible ; after ar-
riving at which they gradually decay. Other animals in-
crease to a certain degree of strength, and sagacity,
which is evidently the ultimate limit within which their
nature is restricted. Their several species appear to be
equal in all ages. There is a point below which they
hardly ever fall, and above which they cannot rise. It is
far otherwise with man. The greatest part of his powers
would be lost, and he would seem to have been made in
vain, if there were not another state of being in which
they may unfold themselves, and attain that perfection of
which they seem to be capable. Hardly, therefore, can
we conceive it to be consistent with the wisdom and good-
ness of God to bestow on man so many incipient talents to
be checked, or cut off in the very commencement of their
progress — germs that are never suffered to come to their
maturity. Moral and religious sentiments, in particular,
do not seem to have any reasonable object ; if we are to
regard ourselves as being only particles of animated dust,
destined to perish almost as soon as we begin to exist ; and
have not, beyond this life, the hope of some nearer ap-
proach to the Deity, and the expectation of some reward

48

from him which shall depend on the purity of our pious
affections, and the integrity of our virtuous conduct in
this life. The sacrifices of virtue would be without re-
muneration 5 and the noblest dispositions of the heart,
cultivated with the most devout care, would be like in-
tense burnt, and scattered by the winds, before a being
who regards it not.

Another argument of no inconsiderable weight for the
doctrine of immortality is derived from the general Relief
of mankind. Such a universal concurrence o*' opinion in-
dicates some original principle of nature on which it rests;
which can only be the operation of God himself in the
human heart. It has formed an article of belief in all
religions. It has been laid at the foundation of all the po-
litical institutions of antiquity, as well as of modern ages.
And no nation has been discovered so rude and savage,
who has not, along with the idea of God, united that also
of the future existence of the soul. — Some philosophers
ascribe this interesting phenomenon to imitation, and the
influence of education. — Where principles have already a
real foundation in nature, education and imitation readily
concur to strengthen their influence. But when they are
entirely arbitrary, although one principle may take root,
and be propagated in one nation, and a different one in
another, yet when have we seen such uniformity in edu-
cation among all the inhabitants of the globe ? These

49

reflections may be illustrated by a familiar example.
Filial duty, and respect for age, which are natural dic-
tates of the heart, have formed a part of the domestic
culture ol every people ; but the arbitrary practice of
making libations to the manes of departed ancestors,
could never be extended, by the same influence, beyond
the limits of the people who invented it.

It has been boldly asserted, but, I conceive, with even
less plausibility, that the doctrine has been introduced,
and obtained an influence in the world by the artifice of
priests, in order to establish their authority over the
multitude by the all-subduing charm of superstition ; or
by the craft of politicians, and the legislators of the early
ages, who found no better way to render their subjects
obedient, and confirm the authority of their laws, than by
the power of religious fear. — But, in answer to insinua-
tions of this kind, we may well ask when had a few priests
or politicians more cunning than all the rest of mankind ?
Whence did they derive that superiority of mind to which
the whole world has bowed with such implicit submis-
sion ? Or how have the ministers of religion, and the
legislators of all nations, entered into a league to pass
the same deceit upon the world ? Such concert among
men of the remotest regions, and of the most opposite
habits, opinions, and prejudices, is impossible ; and such
vol. ii. g

so

facile and universal submission in the mass of mankind
to an arbitrary opinion, by whatever authority recom-
mended, is incredible. — But if it be true, in the next place,
that the order of human society cannot be perfectly
maintained without the belief of a state of future retribu-
tion, and that, therefore, the whole ingenuity of political
intrigue, and the whole force of political power, have
been employed to establish this sentiment among the
people, this is surely an argument of no inconsiderable
weight for the truth of the doctrine. Otherwise, man
must have been formed under the hard necessity of being
continually deceived, in order to promote his best in-
terests ; a consequence which we ought not to impute to
the infinite wisdom and goodness of the Creator.

The universality of this belief, therefore, ought, I
presume, to be ascribed to an original sentiment of our
nature ; or, at least, to a conclusion that so necessarily
obtrudes itself upon the mind from the united reflections
of reason, and sentiments of conscience, that it may justly
be classed along with our natural, and instinctive feelings.
— And I have before remarked, that these universal dic-
tates of the human mind resulting from the natural con-
stitution of man, may always be regarded as the opera-
tion of God, and, therefore, pointing to truth. For we
cannot eouceive how he should be willing to deceive hi*

51

creatures, or that it should ever be necessary for him to
carry on their moral government by deception.

It is certainly no proper or sufficient objection against
the universality of this opinion, and consequently the
truth of the principle connected with it, that there have
existed philosophers who have denied it, or whole nations
who have blended with it many superstitious opinions.—
A minute philosophy, attempting to plunge too far into
the subtleties of speculation, is often much less to be de-
pended on as a guide to truth than the simplest dictates of
the uncultivated understanding. We have seen it, at dif-
ferent times, violate every conclusion, and pervert every
dictate of reason and common sense. We have seen it, in
the hands of the most acute metaphisicians, deny the ex-
istence of matter, though palpable to every sense : — we
have seen it deny the existence of mind, employing its
own ingenuity against itself: — and, we have seen it deny
both body and mind, substituting, in the room of both,
and of the whole substantial universe, a troop of light
ideal shadows which we can trace to no origin, and from
which results no consequence.* It is not surprizing, then,
if a few philosophers, in the pride of speculation, and the
vanity of affected singularity, should have added, to their

* It has been justly remarked that there is no opinion so exr
travagant 'which has not found some one to maintain it.

52

other contradictions to the common opinions of mankind*
the denial of a future existence, and the immortality of the
soul.

The certainty of natural truth, in the next place,
ought not to be questioned or denied, on account of the
errors which either speculation, or superstition has
mingled with it. Nature, on many subjects, particularly
those relating to morals and duty, points to the general
principle, or gives the general impression of the truth,
but leaves it to reason, experience, and reflection, to give
it its perfect shape and form. This each man will do
with more or less accuracy and precision of idea, accord-
ing to the strength of his intellectual faculties, united
with his virtue, or according to the prepossessions,
customs, and habits of his education. From every one of
these causes a degree of error, particularly in a weak,
or superstitious mind, may be mingled with truth, with-
out, however, destroying its radical principle which is
found in some original dictate or instinct of nature. — Of
this an analogous example was furnished in the last
lecture. The instincts, or original sentiments of nature
lead with undoubting assurance to the acknowledgment of
the being of God ; but that important principle, ignorance
has impaired by admitting a plurality of gods, and super-
stition corrupted by imputing attributes to the divine na-
ture unworthy his perfections — Another example maybe

f urnished in the seeds of taste, which are acknowledged to
have been implanted by nature ; but, through neglect we
may suffer them to shoot up wild ; or by improper culture,
their qualities may be vitiated. Yet, even the corruption
of a principle is a proof of its existence ; and the wildest
groAvth of plants shews that the seed is there, which re-
quires only a judicious cultivation to bring it to perfec-
tion.— The seeds of truth, therefore, of nature's planting,
we ought not to eradicate, and cast away, because hither-
to they may have grown wild, or because an unskilful
husbandry may have suffered tares to be mixed with
them ; but, like wise planters, set ourselves to give them
every advantage of culture requisite to advance them to
that state of improvement for which the great Author of
nature designed them.

The argument, therefore, for the immortality of the
soul, drawn from the natural feelings and expectations of
mankind, remains strong, notwithstanding the gloomy
speculations of sceptical philosophers, and the absurd ad-
mixtures of superstitious nations.

Another of the moral reasons on which we found our
belief of this doctrine is the strong desire, and the hope of
good men, and the apprehensions of the vicious ; which
are commonly found to increase in proportion as they
seem to be approaching the period of their earthly exist-

5*

ence. The natural desire of immortality is certainly one
of the strongest affections of the human heart, at least
till the dominion of vicious passions have made it the in-
terest of the guilty to fear it. Of virtue it is the most
powerful motive, and the greatest consolation under the
various trials of life. And on the violent and criminal
passions of men there is hardly any restraint so effectual
as the apprehension of a future existence, and of the re-
tribution with which conscience always accompanies that
fear. The hopes and fears of human nature, therefore,
both concur to strengthen the probability of a renewed
existence after this life. If this lively anticipation of a
future being, in a happier state, be implanted in the hearts
of good men by God himself, can we believe that his in-
finite benignity hath created in them desires only to dis-
appoint them, and inspired them with hopes only to tan-
talize them ? It would be an unworthy imputation on the
divine perfection to suppose that he should convert the
most pure and natural encouragements of virtue into its
severest scourges. For what could be more painful to a
virtuous and pious mind, than to believe that all his fu-
ture and immortal hopes, which are ever the more ele-
vated and strong in proportion to the sincerity and purity
of his virtue, might turn out to be only an unreal dream ?

The same conclusion is confirmed by the apprehensions
ef wicked men, especially under the stroke of any great

55

calamity, or at the approach of death. The conscience of
guilt anticipates a retribution far exceeding any sufferings
to which it is subject in the present life. And very few
are the cases in which this salutary fear can be entirely
extinguished by the hardihood of vice, or the principles
of a perverted education. And certainly, it would not be
serving society, or human nature, to attempt to remove
from the minds of men those useful restraints which the
wisdom of divine providence hath thought proper to im-
pose upon passions, which would otherwise he dangerous
to the peace of society, and to the best interests of virtue.

This argument is not a little strengthened by the effect
which the disbelief of the immortality of the soul, and the
doctrine of a future life, would have upon the state of
public morals. The good could hardly find in the general
order and distribution of providence in the present state,
sufficient motives to sustain them in the continual con-
flicts ; or to encourage the incessant efforts of virtue
which are often painful and laborious, and not rarely ex-
posed to extraordinary hazards. If the passions of men
were freed from the salutarv restraint of religious fear,
and secrecy were, as it would then be, the effectual pro-
tection of crimes, the greatest infelicity and disorder
would reign in society. — We may borrow some instruction
on this subject from the courts of princes, and the capitals
of wealthy and corrupted nations, where this doctrine is

56

treated with the greatest contempt, and moral principle is
consequently most dissolved. If the whole capital were
as corrupted as the court, — the entire country as the cap-
ital,— and all grades of the people were absorbed in the
vortex of impiety, — the common sense of mankind, sup-
ported by the uniform testimony of all history, would
pronounce such a nation on the verge of extinction.
Among the principal symptoms and causes of that de-
pravity, which generally precedes the ruin of states and
empires, have justly been reckoned, by the wisest ob-
servers of human nature, contempt of religion, and dis-
belief of the future existence of the soul, and of those
moral retributions which are always a necessary accom-
paniment of that doctrine. Some of the most eminent of
the Roman writers ascribe the extreme corruption of the
Koman manners towards the period of the republic, and
the first age of the empire, to the introduction and preva-
lence of the epicurean philosophy, of which the final ex-
tinction of the soul at death was one of the leading princi-
ples. If these reflections be well founded, and the doe-
trine of immortality, with the respect for religion which
naturally accompanies it, be necessary to the peace and
order of human society, and the prosperity of nations, the
truth of the principle is strongly implied.* It is unrea-

* See how this principle accords with that expressed by
Cicero. Orat- de haruspicum responses. Quis est tarn vecors

57

sonable to believe that God has formed human nature in
such a manner as to require that it should be governed by
falsehood. We ought, on the contrary, to presume that
all the plans of infinite wisdom do so correspond, that
virtue and happiness, which appear to be the end of the
whole, must be established by truth alone.

There appears, in the next place, such a promiscuous
and unequal distribution of good and evil in the present
state as gives strong ground to expect in some future
period of our existence, a partition of the blessings and
inflictions of divine providence more conformable to our
ideas of the goodness and equity of the Supreme Ruler
of the universe. If we be'itld here the ultimate plan of
his moral government, it would be a most natural ex-
pectation to find virtue placed in such favorable circum-
stances that tranquility, comfort, and honor at least
should be within the compass of its reasonable efforts;
and that vice should be subjected to deprivations, and

qui, cum deos esse intellexerit, non intelligat eorum numine
hoc tantum imperium esse natum, and auctum, and retentum ?
Quam volumus licet, P. C. ipsi nos amemus, tamen, nee nurae-
ro Hispanos, nee robore Gallos, nes calliditate Paenos, nee arti-
bus Gr«cos, nee denifirae hoc ipso hujus gentis, ac terrse domes-
tico nativoque sensu Italosipsos, ac Latinos, sed pictate ac re-
ligione, atgue hac una sapientia, quod Deorum immortalium
numine omnia regi, gubernarigue peispeximus, omnes gentes,
nationesque superavimus.

vol. ii. H

5b

inflictions that should bear some proportion to the dis-
orders and enormities occasioned by it. Contrary, how-
ever, to that order which all our ideas of reason, and of
the goodness, and equity of the Deity would suggest, we
often behold virtue suffering under deep and unavoid-
able afflictions; and those afflictions, not unfrequently,
induced immediately by its firm and steady adherence to
truth and duty; while vice triumphs in the rewards of
baseness and treachery. Many writers professing to put
external circumstances wholly out of the question, have
maintained that happiness, depending entirely upon the
internal state of the mind, is more equally distributed
according to the virtue of individuals than is implied in
the objection; and that Diogenes in his tub was really
more happy than Alexander on his throne. — This vindi-
cation of the perfect equity of the present arrangements
of providence, supposing them to be final, is rather
plausible than substantial. A few men, by religious
enthusiasm, or philosophic speculation, may reduce or
exalt their feelings to almost any standard. But, when
we speak generally of the happiness of human nature,
it is so much connected with the sensibilities of the body,
and so much with the relations of society, and with ideas
resulting from its customs, habits, and opinions, which
necessarily incorporate themselves with all our feelings,
that the external state, and visible condition of men must

59

afford us a more accurate criterion by which to judge
of the equalities, or inequalities of divine providence,
than any interior and invisible standard of mental feel-
ing. And by this scale, surely, we do not perceive the
rewards of virtue, or the chastisements of vice, bestowed
in any equitable degree according to the respective
characters of men. They fall rather according to the
ingenuity, and perseverance of individuals, or the defect
of these talents, or according to some fortunate accident,
than according to merit.

This mixed and unequal distribution of good and evil
is probably better adapted to a state of probation, where
virtue is to he exercised and tried by being thrown into
various circumstances of prosperity and adversity, than
one that should indicate a more exact discrimination of
character would be. But it is contrary to all the ideas
we have framed of the divine wisdom, and beneficence,
to believe that these probationary sufferings are to be
the final reward of virtue; or that this mixture of
pleasure and pain, in which pleasure predominates, is to
be the final infliction of divine justice on that vice which
disarranges the order and harmony of the moral world.

From these considerations, we have the justest reason
to conclude that this mixed condition of human life, and
promiscuous distribution of divine providence, indicates

60

to us only a preparatory state of moral discipline and
trial that has an ultimate reference to another and higher
condition of being.

And this hope we have seen to be confirmed by the
analogy of nature which seems inclined not to leave any
thing imperfect, and will, therefore, not crush in the
germ, or arrest in their incipient state, so many noble
faculties of the human mind which are evidently capable
of attaining a degree of perfection which they never
arrive at, and of evolving powers which they never dis-
play in the present life. — We have seen it confirmed by
the general suffrage of human nature, resting, it would
seem, on an instinctive impression, or intuitive conviction
of the mind, and expressed by the religious opinions of
all nations. — It is further confirmed by the hopes of
virtue, and the fears of guilt, especially at the approach
of death. — And it is confirmed, finally, by the unequal
distributions of providence in the present world.

These moral reasons, when taken separately, may not
be calculated to produce entire conviction in a mind
disposed to weigh every argument with scrupulous dis-
trust; yet, when assembled together under one view,
they present such a group of probabilities as can hardly
be resisted by a candid and ingenious understanding; and
must make even the cold scepticism of infidelity relent.

61

But I must repeat again that full unwavering conviction
on this most interesting subject can be obtained only
from revelation, which not only assures us of the fact of
a future and immortal state of being, but discloses to us
in some measure, wherein it consists.

On the nature of our future existence, admitting, what
reason I think demonstrates, that it is, in the highest
degree, probable, being so far beyond the range of our
experience, we can form no precise and certain ideas.
We can speak of it only in the most general terms. But,
from the analogy of what actually comes under our
observation of the process of nature, we have just ground
to conclude that the condition of human nature will be
greatly improved above its actual state in the present
world, both in personal form, (if, according to the ideas
of religion, we look for a reunion of the body with the
soul,) and in the powers of the mind. In those trans-
mutations which pass under our immediate review in the
insect tribes, we never see them pass from one state io
resume the same appearance in another, but, in each
gradation in their progress, they acquire augmented
powers, and are invested with new and more beautiful
forms. It cannot, therefore, be unreasonable to expect a
vast augmentation in the active powers of our nature,
both corporeal and mental, in the quickness and vivacity
of the senses, in the beauty and excursive force of the

62

imagination, and the penetration aud energies of the
understanding. And the same analogies incline us to
expect the addition, or developement of many new facul-
ties of which, in the present state, the imperfection of
em* reason cannot form any conception.

Nor is it improbable that, in an immortal existence,
the renovated faculties of our nature will advance for-
ward in an endless progression of improvements, whether
reason incline us more to the idea of one uniform state
of existence, or to the pythagorean principle of succes-
sive transmutations. And, in the infinite system of the
universe there is undoubtedly an ample theatre for an
interminable progress both in knowledge, and in virtue.
Nor can we doubt that there, the wisdom, the power, the
goodness, and equity of the divine perfections will be
more conspicuously, and illustriously displayed than in
the present introductory state of being.

Such, without giving any unwarranted license to the
excursions of imagination, and judging only from actual
analogies presented to our reason, may we presume to
be a just, as far as it is extended, though most imperfect
outline of that future state of being, to which virtue
ardently aspires, and to the hope of which the most cool
and dispassionate examination of reason deliberately
affixes its seal.

63

LECTURE XVII.

OF THE NATURE OF VIRTUE, ITS EXCELLENCE, ANB
ITS SANCTIONS. _

mm

CONTENTS. ^

The denomination virtue, whence derived— -Tierce princi-
pal questions raised by metaphisical writers on this sub-
ject, concerning its nature, its excellence, and the sanc-
tions of the moral law — Different opinions concerning
the nature of virtue— -The opinion of the ancients pre-
ferred who maintained that virtue is acting according
to nature. — The general principles which compose hu-
man nature— >The poxvers and faculties of the body,
though the lowest in order, are, however, not to be ne-
glected in our theories of morals. — Move these virtue
requires the cultivation of the intellectual powers — next
of the social and benevolent affections — and jinally of
the moral principles. — On the excellence of virtue the
same diversity of opinion exists, as on its nature — Itsex-
ecllence intrinsic, necessary, and eternal. — Any change
in the natural principles of the human constitution,
would have altered only the modifications, and expres-
sions of virtue, not its essence — The sanctions of the
law of virtue, or the rewards and penalties which ac-

6*

company obedience or disobedience. — These found in
conscience, religion, and general interest — The great
question agitated in the ancient schools, what is the
chief good % — The opinions of the Epicureans, the Stoics,
and- the Pei'ipatetics.

HAVIXG^tated generally the principles of human
nature, especially as related to our system of moral ac-
tion, and exhibited to you, likewise, the most obvious
evidences which reason presents to us of the being of God,
and of the immortality of the soul, doctrines which give
the greatest efficacy to the law of duty, it is time to come
more particularly to the consideration of our duties
themselves, the great end to which our preliminary dis-
cussions have been intended to prepare the way.

The performance of all our duties from proper princi-
ples and with right affections, is denominated virtue. But,
before I enter into a particular detail of the obligations
imposed upon us in our various relations, I shall make a
few observations on the general subject of virtue which
the metaphisical speculations of philosophers, both an-
cient and modern, seem to require.

Virtue is a denomination taken from a word in the
latin language which signifies strength, or force,* be

* A similar derivation is found in other languages of the cor-
respondent term in them signifying virtue.

65

cause, in the first rude ages, when the speech of men was
beginning to be formed, personal vigor, and courage, the
usual accompaniments of bodily strength, were the quali-
ties which chiefly attracted general admiration and confi-
dence. Virtue was then equivalent to another phrase, the
perfection of our nature; and this was esteemed, at that
time, to consist principally in corporeal strength and ac-
tivity, connected, as it was commonly supposed to be, with
boldness and energy of mind.

In proportion, however, as other qualities grew into es-
teem in the progress of society? especially the good affec-
tions of the heart, which are so deeply laid at the foun-
dation of social happiness, and public utility, the same
term became, in time, easily transferred to express these,
which were now regarded as the most estimable proper-
ties of human nature. And the transfer was the more ea-
sily made, because the highest courage is commonly
united with the greatest benevolence, and with all those
noble dispositions which chiefly contribute to the felicity
of mankind.

At length, when the institutions of civilized society
approached their highest improvements, the common hap-
piness being placed under the protection of the laws, and
individual security being less dependent, than formerly,

on personal strength and bravery, the moral dispositions,
vol. ii. i

66

from their predominant influence on the general happi-
ness, becoming more and more the objects of universal
esteem, have now, almost exclusively, appropriated to
themselves the denomination of virtue. The term may,
therefore, still be regarded as expressing generally the
perfection of our nature ; as, when taken singularly, it is
commonly employed to signify some property which con-
tributes to that perfection, This meaning of the term we
apply by a figure, in designating any useful, and distin-
guishing quality of other animals, or even of inanimate
substances ; as we speak familiarly of the virtues of a
horse, of the virtues of a soil, of the virtues of a plant.

In the speculations of philosophers on this subject,
three very general and abstracted questions have been
raised; — what is the nature of virtue?—. What is its
excellence? — And what is its sanction? — On the first of
these questions, we seek for some general principle
which constitutes the essence of virtue, — as benevolence ;
self-love; reasonableness of action; or any other; or we
enquire into the character and quality of those actions
which enter into its description. — On the second, we
enquire what is the true ground of our approbation, or
esteem of virtue? Why it ought to be preferred to any
other course of action ? — The last question implying that
virtue contains in itself the essence of a law, or rule of

67

duty, we enquire in it, by what authority it is enjoined?
under what rewards or penalties it is enforced ?

Of the nature of virtue, different opinions, or rather,
perhaps, different modes of expressing the same truth,
have been adopted by various writers. Some maintain
the principle, that virtue consists in acting agreeably to
the will of God; of which sentiment Dr Paley is a
distinguished advocate. — Others, with Dr Campbell, in-
sist that it is only the wisest means of promoting our
own happiness. — Another class concur with professor
Hutcheson in resolving virtue wholly into benevolence ;
making it consist in a prudent well-directed care to pro-
mote general good. — And, finally, those who delight in
a very abstracted and intellectual consideration of all
subjects, define virtue, agreeably to the opinion of Mr
Locke, to be acting according to the reason and nature of
things.

With regard to these opinions it may be remarked that
there is a portion of truth in each of them; but, as
general definitions of virtue, they seem to be deficient in
precision and accuracy. — It is true, in the first place,
that wherever we can clearly discern the* will of God,
whether in the structure of nature, the order of provi-
dence, or the dictates of reason and conscience, that
will, being ever founded in perfect rectitude and truth,

68

ought to be esteemed an inviolable law by every reason-
able creature. But the advocates of this opinion too
frequently speak of virtue as if it were an effect of mere
•will, without sufficiently considering the essential, in-
trinsic, and immutable rectitude of its nature,* a perfec-
tion which it partakes in common with the nature of the
Deity. — With those who maintain the second and third
opinions, we cannot doubt that virtue contributes both to
individual and to general happiness. But this should be
considered rather as an effect resulting from virtue, in
consequence of the wise and benevolent constitution of
man, than as constituting its nature. Nor, indeed, is the
consideration of our own happiness, at the time of acting,
nor the benevolent consideration of the happiness of
others, always the direct and immediate motive of many
a virtuous act ,• but frequently we are urged to it simply
from the sentiments of piety, of justice, or charity, from
some natural instinct, or from the authority of con-
science.— When, in the last place, virtue is said to con-
sist in acting according to the reason and nature of
things, the definition, though approaching to truth, seems
to be by far too general. The being and nature of things
embraces the infinite relations of the system of the
universe; a very minute portion only of which, can be
subject to our cognizance. Such a standard of duty, ex-
pressed in such general terms, must be extremely vague,

69

unless, like God himself, we were intimately acquainted
with the entire structure of nature. But, besides the
generality of the rule, it labors under another defect.
The system of things embraces physical as well as moral
relations. It would make virtue, therefore, consist in
skill in the arts, as well as in the practice of duty.

If the definition had been limited to our own nature ;
the mutual relations of its different principles to one
another, and the relations of the whole to other sensible
beings, I would be disposed to acquiesce in it. And, with
this restriction, it would coincide, in a great measure,
with that given by a large portion of the ancient philoso-
phers, who maintained, that virtue is Jiving according to
nature: — that is, according to the respective dignity and
importance of the different principles which enter into
the composition of human nature; — according to the
relations in which it is placed to other sensible beings
within the sphere of its action ; and, finally, according to
the end for which it seems to have been formed.

Any system is then said to be perfect when it is con-
formed to the design of the maker, when it is possessed
of all its parts, when they are arranged in the order in
which they are naturally related to one another, and
move in concert to accomplish the end for which they
were intended. And although a machine, or a building

ro

were deranged, so that the relations of the separate parts
did not appear immediately; yet, a skilful machinist,
or architect might, by a careful inspection and compari-
son of each part with the whole, determine, at length,
its proper place, and use in the system. This analogy
may easily be applied to human nature, although it be,
as it is confessed to be, disordered by many criminal and
irregular passions. By the proper exercise of reason,
we may discern those principles which have acquired
undue strength, or those, on the other hanu, which are
too feeble,' or when the whole are in just harmony and
proportion.

Let me employ another analogy for the sake of illus-
tration. In the complicated machinery of a time-piece, if
a few of the wheels, detached from the control of the
regulator, were left to be impelled by the force of the
spring, although their rapid motion, in that circumstance,
would be conformable to the nature of such wheels urged
by such a power, yet it would not be according to the
nature of the machine. The union and subordination of
the parts has been dissolved. In like manner, if a vicious
man, under the impulse of passion, should abandon him-
self to any intemperate excess, although the disorder
would be conformable to the nature of that passion acting
without the government of reason and conscience, it would

71

not be agreeable to the whole nature of man moving as
one system, according to the design of the Creator.

The preceding reflections may serve, in some measure,
to explain the meaning of those who maintain this general
principle, that virtue is living conformably to nature :
that is, to nature, as it appears, from a careful examina-
tion of all its constituent powers and faculties, to have
been its original state in the purpose and intention of the
Deity ; and which appears, indeed, to be the natural and
proper operation of all its parts, when they all move in
perfect coneert and harmony with one another, according
to the relations which reason evidently indicates to exist
among them. Human nature obviously appears to be, at
present, in a state of moral derangement ; yet, as amidst
the broken columns, and arches of some ruined temple,
you can perceive what has been the beautiful arrange-
ment and structure of the entire pile, so we can, even
now, discern, among the disordered powers of man, what
is the true glory of his moral and intellectual constitution.

For this purpose it is necessary to enter into a minute
and particular examination of the constituent powers and
principles of our nature, to enquire what proofs of excel-
lence and worth they respectively contain ? what indica-
tions of natural superiority and title to command accom-
pany the sentiments of some of them ? to discern which

1%

afford the most pure, dignified, and durable enjoyments ?
or which, on beholding them, inspire us with the highest
admiration and respect, or procure for their possessor the
most genuine esteem? These enquiries, correctly an-
swered, will point out the rank whieh each principle
ought to hold ; the culture which should be bestowed
upon each ; and the influence which they should respec-
tively exert on our conduct and manners.

The general principles of our nature affected by such
an investigation, may be ranged under the following
heads, — the corporeal powers and appetites,— the social
affections, — the intellectual faculties,^-and the moral sen-
timents. Under each of these, however, are many sub-
divisions which it would be difficult to enumerate, and
class in their proper order. They must be left to the re-
flection and experience of each person as objects occur,
or occasions are presented in life, to call them into exer-
cise.— But on the general divisions we may remark, that
the faculties, propensities, and pleasures of the body are
evidently the lowest in the scale, and the moral senti-
ments the highest. And, of the others, the social affec-
tions are, perhaps, superior in their intrinsic importance,
and certainly in their influence on human happiness, to
the intellectual powers.

From this transient and comparative view, although
the corporeal part of our nature, its propensities and fa-
culties, are by no means to be neglected in our theories
of virtue, or in its practical details ; yet are they mani-
festly of inferior consideration to our moral principles, to
our intellectual faculties, or our social and benevolent
dispositions. These demand the supreme care, and the
most assiduous culture of every wise and good man, be-
cause they are the properties by which human nature is
chiefly distinguished from that of the inferior animals.
But it is a mistaken notion into which some ancient sects
of philosophy fell, and which formerly misled many ex-
cellent men of the christian church, to suppose that the
body is the seat exclusively of all vicious and corrupted
passions, which, therefore, it is peculiarly meritorious*
not only to restrain within prudent and virtuous bounds,
but by voluntary inflictions and macerations of the flesh,
totally to extinguish. On the contrary, as man is a rea-
sonable being composed of body as well as of spirit,
reason and religion both teach, that his Creator has
charged him with the duty of providing for the improve-
ment and perfection of his whole nature ; and consequent-
ly for the vigor and activity of his corporeal, not less, in

their proper place, than of his mental faculties,
vox. ii. k

7*

This care is requisite to enable him to fulfil, in the
best manner, many of the most useful purposes of life.
And those passions and affections which are supposed to
have their seat chiefly in the body, such as anger, pride,
the affection of the sexes, although their ardor requires
them to be subjected to the habitual control of a prudent
rein, are necessary as our nature is constituted, to the
highest perfection of the human character. An apostle
could say, he angry and sin not. And, certainly, the
noble and manly countenance of conscious bravery with-
out arrogance, united with the serene tranquility of be-
nevolence and gentleness without weakness, presents in
the human form and aspect a work most worthy of God,
Let me again illustrate the remark in the affection which
subsists between the sexes. None of the passions are
more dangerous and corrupting when not placed under the
government of reason and virtue. But, when subjected
to the discipline of a virtuous self-command, it contri-
butes to energy of character, to the cultivation of human-
ity and politeness, and to mingle a certain generosity, and
elevated sense of honor in the manners of society, which
would otherwise be liable to become rude and inhuman.
So that the corporeal powers, and the animal affections,
although among the inferior attributes of human nature,
are far from being unworthy the consideration, and the
well-directed culture of a good man. On the other hand,

as they form an important portion of our compound na-
ture, and extend an influence not inconsiderable into the
action and movements of our whole sensitive, rational,
and moral system, they enter essentially into every just
theory of virtue. A man, however upright in his inter-
course with the world, however meek in his dispositions,
yet if he is vapid, and without any point, and energy in
his character, if he is gross and uncultivated in his man-
ners, if he is even negligent and slovenly in his person,
and without that attention to appearance which is requi-
site to render him acceptable in the society of his friends,
is, in proportion to the neglect, defective in true virtue.
And, although a maxim of Mr Hume's that a reasonable
attention to cultivate personal vigor, activity, cleanliness,
and beauty, is essential to virtue, has been sometimes
treated with ridicule ; yet, has it a certain foundation in
nature, and the genuine principles of philosophy. Nor
can I think that it was altogether out of the view of St.
Paul in giving the character of true religion, when, after
enjoining ivhatsoever are true, honorable, and just, he
adds, tvhatsoever things are lovely, and of good report, if
there be any virtue, if there be any praise, think of these
things — On this branch of the subject I have insisted
with the more particularity, because, in the theories of
morals which have been proposed by various writers, it
has so seldom received the consideration which it deserves.

76

The next class of the human powers is the intellectual,
embracing, not merely the faculty of reasoning, or of
laying down principles of science, and of pursuing them,
through a legitimate train of inferences, to their ulti-
mate conclusions; but the powers, likewise, of imagina-
tion and taste, and all those talents which go to form the
genius, and are connected with the invention or improve-
ment of the arts. It is indispensable to the character of
virtue to cultivate these powers, which form the basis of
the high distinction which human nature claims over
the inferior animals, with all the assiduity that is con-
sistent with the practical duties which in our various
situations we owe to ourselves, to society, and to re-
ligion. All men, it is true, are not placed in circum-
stances equally favorable for the cultivation of their
intellectual powers, nor do their avocations in life re-
quire, or permit an equal proportion of their time to be
devoted to these refined and dignified pursuits. A great
disparity, therefore, must necessarily appear in the
mental employments of different men. — -What is chiefly
requisite in those who enjoy the fairest opportunities
for the improvement of their minds, and possess the best
endowments from nature, is to be aware equally of the
strength and weakness of human reason. Of its strength
to awaken hope, and stimulate exertion on all subjects
which are within the proper range of its faculties ', of

77

its weakness, to check the boldness of hypothetical con-
jecture which is so often used to the great injury of
science; and especially to repress rash and presumptuous
conclusions on moral and divine subjects, instead of hum-
bly soliciting the aid of that Infinite Mind, who, we have
reason to believe, will sometimes deign to impart his
suggestions to those who piously and submissively wait
Tor them.* As there is no exercise of the human facul-
ties more favorable to virtue, than the humble, patient,
and diligent cultivation of the intellectual powers ; none
is more unfriendly than a bold licentious indulgence of
the imagination, on the one hand, or on the other, of
those refinements in speculation which attempt to push
the enquiries of reason beyond the sphere assigned to it
by nature.

In the practical details of virtue, in the next place,
the social and benevolent affections hold a rank superior

* A beautiful example of this modest exercise of reason we
have in a devout heathen, the great Scipio, who, according to
Aulus Gellius, never undertook any important design without
deeply reflecting on it in the presence of the Deity, according
to the ideas of his religion, and seeking the direction of the
divine counsel, in devout meditation, and laying open his mind
to the celestial influence.

P. Scipio Africanus nihilfaepitpriusquam sedisset diutissime
in cella Jovis, quasi acciperet inde mentem divinam, et
cons'lia salutaria reipublicse. Propterea solitus erat ventitare
in Capitolium ante diluculum. A. Gel. 1. 7. c. 1.

78

to that of the intellectual powers. Not that virtue con-
sists, according to the opinion of some good men, ex-
clusively in the exercise of universal benevolence. None
but the Deity can embrace an object so vast as the whole
ef human existence, and make it the direct and immedi-
ate scope of his actions. But in order most effectually to
accomplish this universal design, he has divided it into
separate and individual parts, charging each person, in
the first place, with the care of his own interests, that
in this way the felicity of the whole may be provided
for by the individual exertions of all. But when each
man has acquitted himself of this primary duty, virtue
requires that the principal portion of his active energies
should be employed in cultivating the affections which
unite him with society, and fulfilling the duties which
render it flourishing and happy by mutual co-operation,
and by the reciprocal interchange of kind sentiments,
and beneficent offices. These are clear, and definite ob-
jects which we can distinctly grasp in the mind, and
which present to the affections a precise aim. All beyond
this, when we would render the object of benevolence
more expansive, is only a vague and general wish for the
happiness of universal being. — The impulses of self-love
arc, by the constitution of our nature, so strong that the
duties, or the good offices which a man performs to
himself, and those who immediately depend upon him,

?9

do not stand high in the scale of virtues ; hut the derelic-
tion of them is branded with peculiar reprobation in the
catalogue of crimes. Our benevolent affections, and our
social duties maintain a much higher grade; and the
constant claims which, under one form, or another, are
made upon them in society, requires, in order to fulfil
them virtuously, a large portion of life.

It would be a mistake, however, to suppose that the
benevolent virtues were solely occupied with the great
interests of society, or of human nature. They descend
to regulate the smallest sources of social enjoyment.
Attentions to please, amiable dispositions, polite and
elegant manners, and all those talents or graces of mind,
or conduct, which contribute to promote the harmony of
society, and render men most interesting to one another,
enter so deeply into the springs of social pleasure, and
possess such an important influence on human happiness,
as justly claim for them, though often omitted in moral
systems, an elevated rank among the virtues. They
especially deserve the attention of youth, who are enter-
ing into public life. They correct the asperities of the
passions, they soften and sweeten the intercourses of
society; and possess a most amiable reflex influence on
the temper and character of those who study to cultivate
them.

80

Finally, the highest, and noblest principles of our
nature, which ought, therefore, to be cultivated with the
greatest assiduity, and the most reverential respect, are
its moral sentiments, embracing justice to mankind, and
piety to God. These sentiments are accompanied with
such a perception of dignity and authority in their own
nature, and such a sense of duty and obligation on our
part, as proves them to be of the highest order in the
human constitution, and invested with a natural right of
control over every other power. A just reverence for
them is that which is implied in the common maxim that
a man should respect himself. Not that arrogant claim
to respect from others for our follies, and humors, which
is often made by men who have no other pretence to
virtue except that rash courage which is always ready to
defend their vices ; but that inward and habitual rever-
ence for the dictates of reason and conscience, of honor,
propriety, and truth, which is the surest distinction of a
virtuous man.

The action of the whole system is then only regular,
and conformable to the original plan and constitution of
nature, when every movement is accompanied with an
habitual sense of rectitude, and duty, governed by a re-
spectful deference to the judge and witness in our own
breast, the representative of that infinite and holy inspec-
tion to which we, and all things are subject

81

The principle which I have been illustrating, of making
original nature, as far as we can now discern it, the
proper model of virtue, implies, in the next place, acting
according to the relations which human nature sustains to
all other sensible beings ; whether to God as our Creator,
to mankind as our brethren, or other creatures, as yielded
to our use, or placed under our power, and control.
These ideas will be more particularly explained when I
come to treat of the detail of moral duties in the next
lecture.

Having, in these reflections, laid a foundation for un-
derstanding the general doctrine of the ancient philoso-
phy, that virtue consists in acting according to nature,
by pointing out its constituent principles, and by shewing
their comparative importance, and their mutual relations
to one another in the system, and the necessity of their
moving together in harmony and concert according to
their just proportions, in every course of action: it may
be farther illustrated by considering shortly what indica-
tions are contained in human nature of the end for which
it is designed. Every system that is wisely constructed,
has all its operations so combined and regulated as to
concur in the accomplishment of some useful end ; and in
proportion as it attains this end with certainty and ease,

it is said to be perfect according to the design of the
vol. ii. x,

S2

maker. Pursuing this analogy, if we ask, what is the
did for which man has been formed ? As far as humau
reason can dive into the purposes of nature, it seems to
be, to enjoy and communicate happiness as a sensible, ra-
tional, social, and moral being. In this way he best pro-
motes the benignant purposes of the Deity, and thereby
renders due glory to him j by the practice of good morals,
and by becoming the instrument of the divine beneficence
to his fellow beings. The sincere aim to fulfil this end is
virtue. — Against the design of his Creator, it must be
confessed, man often errs : sometimes through ignorance,
and mistake ; but much oftcner through misguided pas-
sion. He seldom errs, however, with impunity. He is
commonly chastised by the reprehension of his own mind^
and the painful consciousness that he has departed from
the true order of nature.

Permit me then to conclude with this necessary cau-
tion : since names are apt to mislead, and it is difficult to
free the mind from the influence of habitual associations
among its ideas, we ought to beware of imagining that the
philosophical language of acting according to nature,
ever implies yielding to the impulse of any single passion
or tendency which may happen to be strongest at the
time. On the contrary, it implies the regular movement
ot the entire system in the just relations and proportions
of all its parts, as it appears from reason to have been

originally designed by the Creator ; although left to man
as a free, rational, and moral agent, to carry into full ex-
ecution, for a continual exercise of his wisdom, and his
virtue.

OF THE EXCELLENCE OF VIRTUE.

In the next question which occurs on this subject,—
what is the excellence of virtue ? "We enquire wherein its
merit consists ? What is the true ground of our approba-
tion, or esteem of it? Why is it preferable to any other
course of action ?

The same diversity of opinion has existed on this as
©n tbe last question. Some writers maintain that its ex-
cellence lies simply in its conformity to the divine will ;
or that the single reason why it deserves our esteem, and
is to be preferred to vice, is because God has prescribed
it. — This opinion seems to give to virtue too arbitrary a
complexion, and too mutable a nature ; and, apparently,
implies, in the mode of expression, contrary, I presume,
to the true intent of its authors, that our preference
might have been equally required for some form of vice,
if such had been the sovereign order of the Creator. On
the contrary, virtue seems to possess as necessary an ex-
cellence as the Deity himself. In him goodness, justice,
and truth, which are the source, and, as far as the human
nature can resemble the divine, the pattern of virtue in

Si

man, are equally unchangeable and eternal with his in-
telligence, wisdom, and power.

Reflections of this kind have laid the foundation of a
second opinion, that the excellence of virtue is to be sought
solely in the reason and nature of things : which is jonly
another way of sajing that its excellence is intrinsic, in
the nature of the thing, and like the perfection of the
Deity, is eternal and immutable.

The third opinion is, that its excellence consists in its
tendency to promote general happiness. — And the last,
that it is excellent, or is so to be esteemed by each man,
merely from its relation to his own happiness.

On this subject we may, perhaps, justly pronounce, that
there is in virtue, that is, in moral rectitude and good-
ness, an intrinsic and necessary excellence, as was shewn
in our reflections on the moral faculty. It is not depend-
ent upon mere will, even the will of the Deity ; but rests
upon the same immutable foundation with our ideas of
the divine perfection. We can have no other just concep-
tion of God himself but of infinite, eternal, immutable
goodness, rectitude, and truth, united with wisdom and
power. And virtue in human nature is, in its degree, a
transfusion of these perfections. Its excellence, there-
fore, consists in the essential nature of the thing itself.
And that is founded in the eternal, necessary and im-

85

mutable perfection of God. But although I reject the
abstract principle, that the excellence of virtue consists
in its conformity to the will of the Creator, or that his
will alone constitutes its excellence ; yet, wherever his
will is clearly indicated, whether in the structure of the
# universe, and the order of providence, or in the constitu-
tion of our own nature, and the relations which he has
established between us and other beings, it must, from
his infinite wisdom and goodness, be the surest rule of
duty to us.

In support of the principle that virtue, both as to its
nature and its excellence, depends wholly upon the will
of God, it is demanded if he might not have formed us
with other faculties, and established between us and
other beings different relations from those which subsist
at present? And whether, in that ease, the nature of
virtue must not have suffered a proportional change ? — I
reply, that the external acts by which those varied rela-
tions must have been expressed, would necessarily be
changed ; but its essence and principle, which consists in
equity, and benevolence to mankind, in piety to God, and
regard to the happiness of all being, must have remained
unaltered. Will and power, therefore, can only alter the
modifications of virtue, but do not change its nature.

OP THE SANCTION OF VIRTUE.

The third question arising on this subject ; What is
tlie sanction of virtue? implies, that it contains a law, or
rule of conduct, and we ask by what authority it is en-
joined ? and by what rewards and penalties it is enforced ?
For the sanction of a law signifies the good which, by
the constitution of the lawgiver, is made to follow obedi-
ence as its reward, and the suffering which he has annexed
to disobedience as its penalty.

The authority by which this law is enjoined we find in
•ur own breasts, and in the will of God. In the dictates
of conscience Ave perceive an authority that is fitted to
command, as well as a power that is able to punish. — The
authority of conscience, however, is evidently subordi-
nate, and points to the higher control that is placed in the
will of God, to which it continually refers us. — The moral
law, as I have said, possesses an intrinsic and immutable
excellence on account of which it justly claims our sub-
mission and respect ; but it would be dead as to any au-
thority to compel obedience, without a divine legislator
to impose it by his command, and enforce it by his power.
Nothing but ivill, armed with the 'power to reward or
punish, can oblige.

Our next enquiry, then, is, what sanctions the Supreme
Legislator has annexed to his law ? They are commonly

S7

divided into those of duty, and interest. And under thcs«
beads, with a little latitude of expression, they might all,
perhaps, without difficulty be arranged. A more obvious
and comprehensive division, however, I shall take the
liberty to adopt from my immediate predecessor, the late
Dr Witherspoon, who classed them under the heads of
conscience, of religion, and of general interest ; with a very
summary explanation of which I shall present you.

The sanction of conscience consists in the internal
satisfaction, and self-approbation which good men per-
ceive in upright conduct, and in the compunction, re-
morse, and fear which usually follow criminal actions. —
The sanctions of religion consist in the natural hope of
the favor of God which accompanies virtue, and the ap-
prehensions of his displeasure which often mingle them-
selves with vice and disturb its tranquility. But the sanc-
tions of religion reach beyond the present life. And, al-
though, in a work like this, we are not permitted to avail
©urselves of the lights of revelation, yet the belief of a
future judgment, and our natural anticipations of some
righteous retribution to virtue and to vice, seem to an-
nounce the existence of a law in the human breast, w hich
is found in all nations, which carries forward the hopes
and fears of mankind to an after-state of existence. And,
eften, its influence upon their actions, is not the less pow-

S3

erful, because its ideas are obscure ; and, to the vicious*
especially, it presents only an unknown terror.

The question has been seriously agitated whether rea-
son and nature direct mankind to look forward to a cor-
rective and therefore only temporary suffering for vice in
a future state, or to a vindictive justice, which will conse-
quently be eternal. — The former opinion was embraced
by the disciples of Pythagoras, who brought his doctrine
from India. — The latter, especially with regard to certain
grades of crime, seems to have been the more general
sentiment of mankind throughout the world, pagans, as
well as christians. They have. been probably led to the
idea of eternal sufferings from the strong compunctions
of guilt which impart strong and fearful apprehensions of
punishment, but suggest no definite period to it. The
idea, doubtless, was strengthened by observing that many
crimes draw after them, even in the present world, irre-
parable evils. No repentance can efface the stain which
is imprinted on the character by some infamous offences,
nor repair the ravages committed on the constitution by
many vices. Seeing these calamities endure as long as
life, it was not an unnatural apprehension that, hereafter,
in a state of retribution, they would be continued as long
as the existence of the offender.

The last sanction which has been stated of virtue, or
the moral law, is general interest : that is, the happiness

89

which usually accompanies virtuous dispositions, and con-
duct—the unhappiness which naturally follows vicious
pursuits, and dishonest aims.

There are, doubtless, many examples of virtue which
has deeply suffered by misfortune. Misrepresentation
may take from merit the esteem of the world ; an adher-
ence to truth may sometimes overwhelm an honest man
through the artifices of a powerful rival. On the other
hand, momentary advantages may now and then seem to
be gained by a departure from moral principle. But it
may be laid down as a sure and general maxim that a
prudent and steady course of virtue is calculated, by a na-
tural influence, to produce inward peace and tranquility
of mind, and to lead to public respect. The occasional
advantages derived from vice are more apparent than
real ; and seldom are they durable. When a man is once
known to act from corrupt principles, they generally de-
feat his aims; or, if he succeeds, he loses in reputation
and peace of mind, more than he acquires in wealth and
power. Besides, great affluence, or extent of power, al-
though they may often be productive of many conveni-
ences, are not necessarily connected with happiness.
True happiness, on the other hand, most certainly arises
from the inward peace and self-approbation of conscious

rectitude and virtue 5— from moderate, constant, and
voi. ii. m

90

useful employment; and from the regular and virtuous
exercise of all the powers and faculties of our nature,
and especially of the social and benevolent affections of
the heart.

Having treated of the nature, and excellence of virtue
and the sanctions which the Deity has annexed to its
law, particularly in the tranquility and happiness which
it is fitted to impart to the virtuous mind, this seems to be
the proper place to introduce to your notice the famous
question which was so earnestly discussed in the ancient
schools; — What is the chief good? — Having feeble and
obscure conceptions of the felicity arising from the
genuine affections of religion, and the clear and certain
hopes of immortality, as they are understood by a
christian, the great enquiry of their philosophers was,
in what manner existence, with the present powers,
tendencies, and prospects of human nature, might be best
enjoyed? And, on this subject, after the doctrines of the
Pythagorean school, which entertained many pure and
excellent principles of morality, blended with* their im-
perfect ideas of a future existence, we perceive three
principal sects which divided the empire of philosophy,
the Epicureans, the Stoics, and the Peripatetics.

The Epicureans, who derived their name from their
founder, maintained that animal, and sensible enjoy-

01

inents, the gratifications of our natural appetites, and
our external senses, form not only the chief, but the sole
happiness of man ; and that what are called the intel-
lectual pleasures are only the recollections of these,
Which then become somewhat more refined through the
influence of the imagination. Epicurus himself was a
man of moderate desires, and, consequently, maintained
that moderation in every indulgence is necessary to true
enjoyment. — His followers, however, availing themselves
of the literal and obvious interpretation of his general
principle, abused his doctrine to the grossest sensuality.
And their opinions being so much accommodated to the
inclinations of the greater portion of mankind, they
became, in time, the most numerous sect of antiquity.
For the same reason, this philosophy will always practi-
cally flourish among a luxurious people, and in a de-
clining and corrupted state of public manners, in every
nation.

The Stoics, who borrowed their denomination from
the portico in which their discussions were held, main-
tained that true happiness lies only in the mind, and is
not affected by external circumstances. They endeavored
to extinguish all the finest sensibilities of human nature,
from the supposition that they serve only to effeminate
the soul. It was their leading maxim that there is
nothing good but virtue, and nothing evil but vice.

92

Consequently their vise man had no wants. He pos-
sessed in his own mind, and in the acquirements of phi-
losophy, all that is great and good in human nature.
Their virtue, however, was proud, aud too independent.
It excluded, almost entirely, the gentle sympathies, and
benevolent affections of the heart. Their philosophy
was more fitted to generate heroes than to form amiable
and useful men.

The Peripatetics, who received this denomination
from their constant practice of walking while they com-
municated and received instruction, pursued a middle
path between these extremes; and one, I believe, more
conformed to nature and reason than either. They did
not despise the moderate gratifications of sense ; they
cultivated the liberal pleasures of imagination and taste;
they were not indifferent to the advantages of fortune,
provided they were acquired with fairness and honesty.
But they held virtue to be the chief good. And their
virtue was sociable, benevolent, useful. This philosophy
agrees with the account of the nature of virtue which I
have already given. It is the exercise of all the powers
of our nature in their proper proportions, and the just
subordination of the inferior to the superior principles. It
is the preservation of every faculty in its greatest vigor
and perfection, and, thereby, maintaining it always in a
slate of readiness not only to be applied to its best uses,

93

but to derive from it, its highest enjoyments. — Over all
presides the moral faculty both to direct their exercises,
and to assist their enjoyments; being at the same time,
itself the source of the purest and suhlimest pleasures.
—So that, according to this theory, taking virtue as a
general rule of action, and judging from its general
effects on individuals, communities, and nations, if it
cannot be pronounced the only good, it is manifestly the
chief good. It is the common interest of the world.

Such are the grounds on which I have made general
interest a sanction of the moral law. I confess that the
depravity of human nature, and the imperfection of
human virtue in the best of men in this world, would
render this sanction too feeble if it were not aided by that
of religion. But religion, conscience, and general inter-
est, taken together, form one that will necessarily pos-
sess great force on every serious and reflecting mind.

9*
LECTURE XVIII.

OUR DUTIES CLASSED UNDER THEIR GENERAL HEADS.
CONTENTS.

The ancients having no system of public and popular
moral instruction, theology, and morals, were necessa'
rily taught in the schools of their philosophers. — The
details on these subjects were therefore more ample
than are usually found in the modern systems of phi-
losophy— Morality divided in different ways*— first
according to the principles from which it springs — and
secondly according to the objects on which it terminates.
—The former, the division of the ancients, who
arranged the virtues under the heads of justice, pim-
dence, temperance, and fortitude— The analysis of
these — The latter division more commonly used by the
moderns, — including the duties which tve owe to God-
to our fellow-men,^ — and to ourselves. — Our duties to
God, internal and external — the internal, love, rever-
ence, resignation — The external, visible worship, the
forms of which various, but its essence embracing
adoration, thanksgiving, confession, prayer — Objec-
tions answered. — Of our duties to our fellow men — of
our duties to ourselves.

95

AMONG the ancient philosophers the principal por-
tion of their moral systems was occupied in theological
discussions, and in the detail of duties resulting from the
various relations of man, domestic, social or civil. The
national religion, consisting chiefly in a multifarious
ceremonial, and little in doctrine, or moral precepts, had
established no means of public and general instruction
for the people in the principles of piety, or morals, such
as christian nations enjoy in their churches. The system
of duty was taught only in their schools. Its details,
therefore, were necessarily explained with great minute-
ness, and extent in the discourses of their philosophers.*
But among christians the practical duties of life, as they
respect either religion, or society, are so constantly
inculcated from the pulpit, and are so perfectly under-
stood by all classes of the people, that this part of our
philosophieal course is, in consequence, greatly abridged.
All that I shall aim at, therefore, will be to reduce our
duties under general classes, so as to present a clear and
systematic view of them ; and to exhibit their general
principles, so that the grounds and reasons of each duty
may be better understood ; and our ideas concerning it
may, in some dubious cases, be rendered more precise
and determinate.

* Of which we have admirable examples in the treatises of
M. T. Cicero, de officiis, et de natura deorum.

96

The duties of morality may be divided in different
ways, either according to the principles from which they
spring, and which govern their exercise, or according to
the objects on which they terminate. The former prin-
ciple of division was generally adopted by the ancient
philosophers, who classed them under the heads of
justice, prudence, temperance, and fortitude. The latter
is more commonly employed by christian writers, who
arrange them under the heads of the duties which we
owe to God, to our fellow-men, and to ourselves. — I shall
place before you a very brief view of each of these
systems.

Justice, according to the interpretation of that term
by the ancients, was used in a much more comprehensive
signification than it is by modern writers ; and was made
to embrace the duties of benevolence, as well as those of
strict equity. Their rule of justice, although noAvhere so
clearly and concisely expressed in their writings, as in
the precept of our Saviour, was in substance the same;
— " whatsoever ye would that men should do unto you,
do ye even so to them." Justice, therefore, according to
their ideas, included the duties of innocence, which con-
sists in abstaining from injury to others ; — of equity,
which is returning an equivalent for the good we have
received; — and of beneficence, which implies conferring
such favors on others as, in exchange of circumstances,

97

we could reasonably desire from them. In their moral
commentaries, likewise, the parental and filial duties,
piety, friendship, gratitude, candor, liberality, charity,
and even civility, and politeness, were all comprehended
under the head of justice. And to the same comprehen-
sive class were referred all our public duties as citizens,
or as magistrates, as well as our social and domestic.

It is a principle generally received, that the duties of
justice, may he made the objects of positive institution,
and of penal laws. Those of innocence and equity may
certainly be required by compulsory authority, and their
violation punished by the power of the magistrate. But
as those of beneficence, if they are to be included under
the head of justice, cannot be designated by such definite
limits, it would not be safe to entrust their regulation or
their punishment to any human tribunals. They can
properly be enjoined, therefore, only under the sanctions
of conscience and religion.

Prudence may be defined to be the pursuit of objects
according to their worth, and the application of the fittest
means to arrive at their possession. — It calls into action
the talents of judgment, and discretion, in forming a just
estimate of the value of different objects which solicit
our attention, a sound consideration of the natural con-
nection of causes and effects, with a quick perception of

vol. ii. n

9S

occasion and opportunity, and a steady firmness of mind
in seizing and applying them to their proper ends. Pru-
dence has been pronounced by many writers to be rather
a natural talent than a moral quality. And certainly,
some men, by their constitutional organization, possess
more than others that calm judgment and discretion
which is necessary to their framing wisely the plans of
conduct, and that foresight, firmness, and decision which
are requisite to carrying them successfully into execution.
But it is, like most other useful qualities, capable of
being greatly improved by habitual reflection, and a
vigilant self-command. And it is so intimately connected
with morals, and so necessary to the successful issue of
every important design, that true virtue will ever aim
assiduously to cultivate it. A man who is deficient in this
talent can seldom act to any great or useful purpose.
He may often defeat the best intentions, and derange the
most wholesome plans; and can rarely acquire, aud never
preserve, true respectability of character. An imprudent
man is liable to embarrass himself in the most dishonora-
ble diffculties, which present almost irresistable tempta-
tions to crime. And often, without foreseeing the
precipice on which he is running, he may throw into
confusion his own most important interests, or the
interests of his dearest friends. In proportion, then, a?

99

imprudence is a vice, is the merit of cultivating thf
opposite virtue.

Imprudent men we sec prone to impute the disastrous
consequences of their own neglect, precipitancy, or mis-
management to the arrangements of divine providence;
and, with a mistaken piety, profess to trust in providence
to relieve them from the effects of their own indiscretions.
—This arises from a most erroneous conception of the
universal government of the Supreme Being, as if it were
a vacillating, and mutahle disposition of events, liahle to
be disarranged according to the exigencies and desires of
men. Divine providence, on the contrary, proceeds on
fixed and invariable laws, of which prudence may avail
itself, as far as they are known, for its own interest; but
which never change with a weak indulgence in compassion
to the errors of human folly; Men sometimes mistake
the regular order of events, where the concatenation of
their causes is, through ignorance, or inattention, not
observed, for immediate and extraordinary interpositions
of Heaven. Such fancies do no honor either to religion
or philosophy.

The general virtue of prudence may be regarded as
including the following considerations : — In the first
place, a decent respect in our conduct, and the declara-
tion of our opinions, to the known sentiments and feelings

100

of others ; which may conciliate friendship, and mutual
civility, that direct collision, even on trivial subjects,
tends very much to destroy. — In the next place, a scrupu-
lous attention, in our manners, and in the temper which
we manifest in our social intercourse, to what our period
of life, and station in society requires or permits. There
is a wide difference between the decencies and proprieties
which are becoming in age or in elevated rank, and those
which are demanded of youth or of dependence. — A no
less important consideration, in the analysis of this virtue,
is a judicious ngard to economy in the expenditures of
living, according to the certain means which we enjoy.
If this is requisite to the fulfilment of the duties of
justice and benevolence, it is equally necessary to the
freedom and independence of mind which every virtuous
citizen should study to preserve. — To complete that
character of prudence which is requisite to eusure success
to the general designs, and especially the important en-
terprizes of life, we should combine, in the character,
and habit of the mind, two apparently opposite quali-
ties, which, however, are necessary to impart to each
other a mutual and solid support, — decision, and caution.
For without decision, caution becomes feebleness or
timidity ; and without caution, decision is apt to degen-
erate into rashness or obstinacy. By the former I mean
that prompt and resolute choice of conduct, which seizes

101

•ccasion at the proper moment to ensure success, when
indecision would be loss of opportunity. And by the
latter, that calm and deliberate judgment which foresees
and provides against all difficulties,* which weighs well
the characters of those with, or against whom we act;
and balances the magnitude and importance of every
undertaking with our own talents.

In this division of the virtues, in the next place, tem-
perance implies, not merely abstinence in the use of meats
and drinks, but moderation in all animal enjoyments.
In the idea of temperance, likewise was included, ac-
cording to the habits of thinking among the ancients, that
constant and useful employment, and that degree of active
and strenuous exercise, which are necessary to promote
the health and vigor of the body, and to subdue its pas-
sions and appetites into a just subserviency to reason.

In the same system, in the last place, fortitude com-
prizes the virtues of patience, intrepidity, and constancy.
By patience we mean firmness in enduring suffering, — by
intrepidity, courage and resolution in encountering
danger,-—and by constancy, that strength of mind which
enables a virtuous man to persevere, in opposition to
difficulties, or temptations, in a course which he has once
chosen with wisdom.

102

Fortitude has, like prudence, been regarded by many
writers as a natural rather than a moral quality; and
depending chiefly on a certain constitution of nerves.
Nature has, undoubtedly, given to some men a greater
constitutional firmness of mind, and hardiness of enter-
prize, than to others; but a composed courage in the
midst of dangers, and an unshaken constancy in the
midst of sufferings, are qualities which may be acquired
by a virtuous energy of soul. And much of the dignity
and usefulness of life depends upon their cultivation.
Native timidity may be overcome, by proper culture,
especially if united with the experience of suffering and
danger, which ought always, perhaps, to enter into the
plan of a wise and virtuous education. The weakest na-
tures have been enabled, by the power of religion, to
endure with firmness the greatest evils; and intrepidity
and courage may be acquired, of which we have many
examples in the school of the Stoics, by the force of
principle and habit. And I doubt not, if Demosthenes
had taken as much pains to cultivate the intrepidity and
constancy of his mind, as he did to improve Ids eloquence,
he might, instead of being reproached for his cowardice
at Cherona, have become as great a soldier as he was
an orator.

From this analysis of the virtues made by the ancients,
it is obvious that, under their fear heads, may be em-

103

braced all the practical duties of life, with all the
speculative questions which philosophers have raised
©n the theory of virtue.

•I am next to consider the more modern division of
duty, as its objects are different ; God, our fellow men,
and ourselves,

OF OUR DUTIES TO GOD.

Our duties to God may be divided into the external,
and the internal; or into those that are general, and
those that are particular.— Our general duties embrace
the whole compass of piety and virtue; because, as they
constitute the moral law of the universe prescribed hy
God, conformity to their dictates is justly regarded as
obedience to him. The particular duties terminate im-
mediately on God as their object, and include both the
devout affections of the heart, and the external expres-
sions of those affections. The internal affections which
are due to God, and from which, as from their natural
source, flow all the streams of pious obedience in the
life, are love, reverence, and resignation. Love is ths
active spring of universal obedience. To be sincere it
ought to be supreme; and is most perfectly expressed in
the injunction of the sacred scriptures; thou shalt lore
the Lord thy God ivith all thy heart, with all thy &oul,
with all thy strength, and ivith all thy mind. This affec-

tion respects all the attributes of the Deity, but chiefly
his moral perfections, and especially that infinite good-
ness on which we, and all tilings do constantly depend.

Reverence, the next of our internal duties, is less #n
active than a restraining principle. It is calculated to
impose a salutary check on the passions of mankind, sur-
rounded and stimulated as they constantly are by pow-
erful temptations to vice. This affection has respect
chiefly to the infinite greatness, wisdom, power, and holi-
ness of God. It is a principle essential to the existence
of piety and virtue in creatures so imperfect, and
prone to evil as mankind. From the profound degree
in which- it prevails in a pious mind, it is often de-
nominated, in the sacred scriptures, the fear of God.
This is a virtue which was held in peculiar honor in the
early ages of the Roman commonwealth. And we learn
from their most distinguished writers, that they regarded
the fear of the Gods, and reverence for the sacred offices of
their religion, as the basis of the public virtue, and of the
prosperity of the republic. — How much more truth and
importance should be attached to this principle in an en-
lightened christian country.

Absolute resignation to the divine will, and the wise
arrangements of providence, I have mentioned, in the last
plaec, as belonging to our internal duties. — It implies

105 #

entire confidence in the wisdom, justice, and goodness of
the Infinite Mind, and a deep conviction of the narrowness
of our own understanding, and the imperfection of our
own views as to what is good or ill for us. Resignation,
resting on these principles, begets not only a grateful
acknowledgment of the manifold blessings of divine
providence, but a submissive acquiescence in the will of
Heaven under its most afflictive dispensations ; believing
that, although we may not be able to discern their ultimate
relations to any beneficent end, either to ourselves, of
others, yet are they all reasonable and just, and good;
and necessarily springing out of the all- wise arrange-
ments of the universal system under the government of
God. — This disposition of mind is equally opposed to all
discontent and repining at the course of providence, and
to all vain reliance upon its aids while Ave are
negligent of our own duties; it tends to produce that
placid serenity of soul so becoming the character of
resigned piety, and to awaken the active and prudent
exertions which virtue requires of every good man, in
dependence on God, to improve the felicity of his con-
dition, and his honorable standing in life.

- Our external duties comprize every decent outward

expression of the inward and pious sentiments of the

heart. They are all comprehended under the general
vol, ii. ©

0 106

name of divine worship, for which, however, natural
reason has not prescribed any precise and definite form.
Different nations, and different sects of religion, have
each adopted a peculiar ceremonial for itself. No sanctity
ought to be ascribed to rites exclusively of the affections
which they are designed to assist ; or any farther than
they are proper expressions of the devout dispositions of
the soul. But all rites deserve to be regarded with
respect which custom has sanctified among any people,
and has so associated with their religious ideas as to be
to them the most serious and affecting expression of their
devotional exercises. In considering the general question
of the utility of rites and forms in religion, and how they
may be applied in the most effectual manner to answer
the design of impressing the heart in divine worship, and
aiding its pious emotions, reason will decide that the
ceremonial ought to be neither too simple, nor too mul-
tifarious, or splendid. The mass of mankind are so much
governed by sensible impressions, as seldom to be able to
support with proper fervency, a religion that aims to be
wholly intellectual, and scorns any alliance with the
senses; on the other hand, the senses are apt to be so
much amused with a ceremonial too splendid or multifa-
rious, as, in time, to exclude the heart and understanding
from divine worship, and to substitute in its room, only a
frivolous superstition.

i

10.7

The essential parts of a rational worship, in whatever
ceremonies it is clothed, are adoration, thanksgiving, con-
fession, and prayer. Adoration relates to (he infinite per-
fections of the Deity for which we ought, in devotion, to
feel and express the highest veneration. Thanksgiving is
employed in expressing our grateful acknowledgment
of those mercies which we continually receive from him.
Confession respects our manifold offences, and omis-
sions of duty. And, finally, prayer regards those mercies
of which we have need, and which we ought humbly and
submissively to ask of him, either for ourselves, or for
others.

These duties, being continually explained and in-
culcated in the public institutions of religion, are so gen-
erally understood as not to require any further illustra-
tion in this place. Two objections, however, have been
so plausibly urged against the duty of divine worship in
general, as it has been just stated, that they ought not,
perhaps, to pass without a particular answer.

It is said, in the first place, to convey an unworthy idea
of the Deity to suppose that he derives pleasure from
hearing his perfections repeated, or his praises extolled
by mortals, in acts of adoration, as if, by such adulatory
addresses, his displeasure could be soothed, or his mercy
bribed — It is equally unworthy the divine majesty, it is

10S

alledged, to believe that humiliating confessions from
such imperfect beings can be acceptable to him who
already knows and pities all their errors; or that he can
require of them formal acknowledgments for acts of
beneficence which it is agreeable to his nature to bestow,
and for which no acknowledgments can make any re-
quital.

To these unfair observations it may justly be replied,
that it is an essential law of our nature that all high sen-
timents, or strong affections, necessarity seek for some
means by which to express themselves. If, therefore, we
feel as virtuous and pious men ought to feel towards the
author of our being, to check this dutiful expression of
our emotions would be to stifle the most reasonable im-
pulses of the heart; and not to feel them would be the
proof of a cold and corrupted soul.

I add, that the most natural and laudable affections,
when they are suppressed, and are entirely locked up
within the heart, necessarily languish, and, at length,
cease to be felt. The strong and ingenuous emotions of
unfeigned piety will seek for some reasonable mode of
external expression, and the repeated expression of them
in the acts of a visible worship will reciprocally give
strength to the inward principles from which they flow.
An external worship then is founded on principles of tbfc

109

soundest reason, and most conformable to the laws of
our moral nature. It cannot, by any person who thinks
wisely of the divine nature, be supposed to be enjoined
by the infinite mind for any gratification which he re-
ceives from the praises, or prostrations of a being so
feeble and imperfect as man. It can arise only from
that infinite wisdom and benevolence which requires our
worship for its own essential rectitude, and for its own
beneficial influence in cultivating in the human heart the
affections and habits of virtue and piety for which it is
so admirably fitted. For adoration of the divine perfec-
tions, while it impresses the pious mind with an awful
reverence of the Deity, tends to elevate the tone of its
moral feelings, and to assimilate them to the purity of the
object of its worship.— -The grateful recollection of the
divine mercies in the immediate presence of God, serves
to confirm the affectionate purposes of duty and obedience
to him.— On the contrary, the penitent confession of sin
helps strongly to arm the soul against its own weakness,
and its unholy passions. And finally, the supplications
which we address to the Father of mercies for the
blessings which we need, either for the present life, or
in the hope of a better existence, remind us continually
of our dependence on him for all things, and awaken, by
that remembrance, the profoundest sentiments of piety.

110

The second objection, which, perhaps, is more plausi-
ble, and seems supported on stronger metaphysical
ground, is directed against the efficacy, and, consequent-
ly, the utility of prayer, employed as a mean of obtain-
ing the divine favor either in our public, or private
devotions. — The order of the universe, it is argued, and
the eternal train of causes and effects have, from the
beginning, been fixed by infinite wisdom. And the laws
of wisdom are as unchangeable as those which have been
ascribed to necessity, or fate. — Why then, it is demanded,
should we pray ? If pre-established causes naturally co-
operate to the production of the event, it must take place
independently of our prayers. If otherwise, we pray in
vain. The breath of mortals caunot change the eternal
order of things. — This is the objection placed in its
strongest point of light. — To obviate it, let it be observed,
that prayer can have only two ends in view ; to cultivate
the moral qualities of the heart, and thereby obtain
those spiritual blessings which, in the order of provi-
dence, are connected with them; and to procure those
natural and temporal goods which we solicit in prayer.
To obtain the former, we have seen that prayer, with
every other part of divine worship, possesses an obvious
and acknowledged influence. The stress of the objection,
therefore, bears upon the latter; but admits of this
simple and unconstrained solution.— From the superiori-

Ill

ty of intellect to matter, and of the moral to the natural
order of things, there is the highest probability that the
physical has been created wholly in subserviency to the
moral world. If this principle be admitted, will it not
result as a natural consequence, that the Creator may
have so adjusted the one to the other, that, foreseeing
the sincere and reasonable desires of good men who are
his children, the order of causes, and the train of events
shall, at the proper time, and in the way most agreeable
to his infinite wisdom, correspond with their prayers ?

This may be regarded as a hypothetical answer to the
objection. There are innumerable occasions, however,
on which the answer may be drawn from the plain and
obvious course of nature. How often do the events of
the world manifestly depend upon moral springs? How
often do we see the fortunes of individuals greatly in-
fluenced by their moral character? And the universal
voice of history has almost raised it into a maxim, that
the prosperity of nations is intimately linked with their
virtue, and their decline as certainly associated with the
corruption and disorder of the public manners. When,
therefore, we reflect how much public, and individual
manners are affected by the healthful state of religion,
and how much this is connected with the purity of the
public worship, and the sincerity of private devotion,
we can hardly avoid the conclusion that, on many events,

112

prayers offered up to God iu sincerity, with fervency,
and perseverence, have an influence not less powerful,
and, often, much more successful, than any other second
Cause. So that, whether we regard the wise, and eternal
arrangements of providence, or the known and fixed
order of natural and moral events, the result still re-
curs, that prayer, far from being an unreasonable, and
hopeless service, not only has a natural and important
influence on human events, but may have, as revelation
assures us it has, a positive and divine efficacy. And,
indeed, can any institution be more just and equitable in
itself, than that God should make the bestowment of the
blessings which we ask in prayer, to depend upon the
existence and growth of those pious dispositions which
are best cultivated in these devotional exercises ?

OF OUR DUTIES TO OUR FELLOW-MEN.

Our duties to our fellow-men include a greater com-
pass and variety than those which terminate immediately
upon God. They respect the infinite relations which
subsist among mankind, and they necessarily occupy
much the largest portion of life. There is scarcely an
action we perform which does not affect some of these
relations. From the general information which prevails
in a country like ours, continually enlightened by the
pulpit on the practical duties of society, it would be

113

wholly unnecessary, in this place, to go into an extensive
detail of our social offices. It will be sufficient to suggest
a few subdivisions under which they may all be systemat-
ically classed.

The first and most general of these divisions may be
into the duties which are negative; consisting merely in
abstaining from injury, or from ever inflicting unneces-
sary pain,— and such as are positive, being employed
only in doing actual good. — Many other classes of practi-
cal duty might admit of a similar division; but this, on
account of the many and strong passions in human nature
that so often impel men to mutual injury, seems particu-
larly to require it.

The positive duties of this class may all be ranked

under the heads of justice, and beneficence. But, though

so simple in their principles, they are almost infinitely

diversified in their details, according to the relations

which we sustain to our country — to our family — to our

vicinity — to our friends — to the objects of our charity —

to those who are invested with authority over us — or who

are subjected to our control — or, finally, according to our

philanthropic relations to mankind. — On these duties

volumes have been written; libraries have been filled;

and still they are subjects which constantly demand our
vol. ii. p

Ill

attention, and on which we can never cease to be active*
and to learn.

OF OUR DUTIES TO OURSELVES.

The duties which we owe to ourselves are as real, and,
in many respects, as important as those of any other
class. On these, as on the last, I shall content myself
with simply enumerating the subdivisions under which
all tbe particular details may be embraced. They relate
to self-preservation — to self-enjoyment — to self-interest
— and to the general cultivation and improvement of our
nature.

Self-preservation includes the care of health, of liberty,
and life. He is culpable who neglects his health, which
ought to be diligently preserved only for the useful and
virtuous purposes of living. — He is, perhaps, more culpa-
ble who barters his liberty for any pretended convenience,
or compensation, or who does not strenuously defend,
when it is attacked, this most noble, and precious preroga-
tive of our nature.' — And voluntarily to sacrifice life, or un-
necessarily to hazard it, in a cause that is not worthy the
rational and moral nature of man, if it does not flow
from insanity, is an evidence of a mind precipitate and
foolish, and utterly void of virtuous fortitude.

115

A rational self-enjoyment, in the next place, every
good man is not only permitted but required to cultivate,
in order that he may be rendered more grateful to his
Creator, by moderately, and prudently using the blessings
of divine providence. This is evidently conformable to
the design of the Deity in our creation, and harmonizes
with the apparent structure, and order of our nature.
But in using this flattering privilege, peculiar caution is
requisite, lest the force of self-love should urge indul-
gence beyond that restricted and frugal boundary at
which prudence, and virtue should arrest it.

Self-interest, the cultivation of which belongs to this
class of duties, relates to necessary provision, and com-
fortable accommodation, which no good man, under any
pretended idea of benevolence or public spirit, ought to
neglect; and, in a more extended view, it relates to the
favor of God, and to eternal felicity in a future world,
which should be the first concern to every truly wise
man in the present.

The general cultivation and improvement of our na-
ture, which I enumerated last among the duties which
we owe to ourselves, has for its objects, as I have men-
tioned in the preceding lecture, our bodily powers, the
faculties of the mind, and the affections of the heart.
The most important trust which our Almighty Creator

116

has committed to man as a moral and accountable being,
is himself. And the first obligation which such a gift
imposes upon him is to carry it to the ultimate perfec-
tion of which it is susceptible.

Such is a very brief analysis of the general system of
our duties, but sufficient, perhaps, to present to a studi-
ous and reflecting mind a key to its minute, and particu-
lar details.

117

LECTURE XIX.

OF (ECONOMICS.

FIRS* OF MARRIAGE, OF DIVORCE, OF ILLECltlMAtE CON-
NEXIONS.

CONTENTS.

Of marriage. — If polygamy be prohibited by the law of
nature? — Its existence before the christian azra not in-
consistent with good morals. — The monogamic institu-
tion most favorable to human nature, and obligatory
on us by the positive institution of Christ, and by the
ivholesome laics of our country. — Jlnciently marriage
regarded as a subject entirely of civil and political
regulation— This principle not unfavorable to the
strictest rules of chastity and good morals. — Of divorce
— Of the command of our Saviour respecting repudia-
tion.— The perpetuity of the marriage contract favor-
able to morals and happiness — Of the legitimate causes
of divorce — They ought always to be made as much as
possible to favor the weaker scx.—Of infidelity to mar-
riage vows. — Of obstinate desertion. — Of intoxication.
— Of cruel treatment. — Of contrariety of temper — Of

incurable diseases Of mutual consent Of the illegal

commerce of the sexes. — Its pernicious influence on

118

society Its criminality, and the cruelty of Us con-
sequences,

FAMILIES being the elementary portions of eivil
society, the doctrine of osconomics naturall;. precedes
that of politics. The domestic relations, which are the
subjects of disquisition in this branch of the science, are
those of husband and wife, of parent and child, of
master and servant. The reciprocal obligations and du-
ties which arise out of these relations are already so
well understood that they require but little elucidation
from the philosophical chair. On these, as on many
other practical subjects in morals, the instructions of the
church have, in a great measure, superseded the neces-
sity of those of the school. I shall, therefore, confine
my enquiries, or observations, concerning them chiefly
to a few speculative questions which are either more
doubtful in themselves, or have been rendered so by the
prejudices under which they have been viewed.

Of these relations the first in importance, as well as
in its natural order, is that of husband and wife. And,
on this subject, omitting, as unnecessary, all other ques-
tions, I shall limit myself simply to laying down a few
principles relative to the nature, the ends, and the dura-
tion of the contract by which they are united.

119

Marriage is the union of the sexes under the sanction
of known, and public laws. Its ends are, to promote the
happiness of man, and to provide for the state a succes-
sion of useful, virtuous, and well-educated citizens. These
ends would be entirely defeated by a promiscuous and
uncertain commerce, which would have the most baneful
influence on social order, and on the public morals. That
the Creator intended the most tender and intimate unions
to subsist between them, is evident from the constitution
of our nature, and from the mutual sentiments by which
he has attached them to one another. But the dangers
with which he has thought proper to guard the chastity
of the weaker sex, the helplessness of infancy in the
human species, and the necessity of providing, from their
earliest years, for the virtuous education of children, re-
quire that this union should be placed under the pro-
tection, and control of the laws. Otherwise, women would
be exposed to the severest sufferings, and the most mor-
tifying degradation; men would be at once licentious,
and unjust; and children would be, at first, the most
wretched, and afterwards the most vicious of beings.

Marriage, according to the precepts of religion and
the civil institutions of the christian world, can take
place only between one man, and one woman. But
in consequence of the laws of Israel upon this subject,
and the customs of patriarchal antiquity, it has become

120

a question among christian moralists, whether polygamy
be contrary to the prescription of the law of nature, or
only to the positive institutions of religion, and the state ?
Of the law of Christ there can hardly exist any doubt.
The question, therefore, relates chiefly to the age
anterior to the christian dispensation, and to those nations
who do not enjoy the light of the gospel. I confess I
cannot perceive, from the opinions, and example of the
wisest men of antiquity, that the law of nature has pre-
scribed any definite rule upon the subject, and, therefore,
where religion has not taken it out of the hands of the
legislator, it is to be regarded chiefly as an affair of civil
and political regulation. — Monogamic institutions have
been found wherever they have prevailed, to be followed
by a more favorable influence, than the polygamic,
on the improvement and happiness of society. And this
experience affords a practical demonstration of the
wisdom of the christian law \ but we should be very
cautious in pronouncing those, who did not enjoy the
illumination of that law, to have been guilty of any crime
in not conforming themselves to its dictates. Their
practice was rather an error of the judgment, in mis-
calculating the true interest of society, than a vice of
the heart. On this ground alone can I defend the
venerable patriarchs of the ancient church, who are
proposed to us in the sacred scriptures as the highest

121

examples of piety and virtue. In these opinions, likewise,
I am supported by the most learned and pious writers of
the reformed church, and of the primitive and apostolic
age.*

The law of nature is written on the hearts of all men,
and it is interpreted by conscience, enlightened by that
portion of reason which we share in common with man-
kind. Its genuine principles are learned by collecting
those moral sentiments in which all nations have con-
curred. By this law chastity is enjoined ; but no precise
rule is prescribed with regard to marriage. It is left to
the regulation of society, and the public law.f

* Vide St. Ambrose speaking of the marriage of the holy

patriarchs St. Aug. contra Faust, lib. 2. c. 47. — Luther,

Melancthon, Bucer, consultation signed by them and others, on
the application of the Landgrave of Hesse in 1539. — Dod-
dridge's lectures 189. — Saurin, discourse sur la bible. Tom. 1.
disc. 19. p. 296. Ed. Amstel. 1720.

t Some writers have very foolishly objected, that, if this
were the dictate of natural reason, then might the civil law
permit a man to connect himself with as many women as a
vicious appetite should solicit. As well might any other vice,
or folly be imputed to this source. It is supposing that legis-
lators may be destitute of all wisdom and virtue. It is suppos-
ing that they have no concern lor the interest, and happiness
of their wives, sisters, or daughters. It is forgetting that each

wife must have her family, and her separate maintenance. It is
vol. ii. q

122

It is objected to polygamy that it is unfavorable to the
energies of the human mind, and the vigor and perfec-
tion of the human body; — that it tends to strengthen
licentious inclinations and habits; — that it destroys the

imagining a consequence which never has happened, and never
can happen in civilized society.

Moses, in some parts, at least, of his matrimonial code, ap-
pears to have proceeded on this idea, that it is a subject of
civil and political regulation. Therefore we perceive several
injunctions and inhibitions evidently founded on his peculiar
political institutions. — In one circumstance, for example, a man
is forbidden to marry the widow of his deceased brother. In
another circumstance, he is commanded to marry her, under
the penalty of forfeiting his legal right to the landed estate of
his brother, which should devolve to the next nearest male re-
lation of the family, who should fulfil the condition of the en-
tail. These apparently contradictory regulations sprung out of
the agrarian system established by Moses in the land of Israel.
He divided the whole territory into six hundred thousand por-
tions, according to the number of the families which entered
into it under the conduct of Joshua. And he ordained that
these portions should descend by entail, or perpetual succes-
sion, to the legal heirs respectively of the original families, in
such a manner, however, that no man should be allowed to
hold two portions either by devise, inheritance, or marriage.
If then the deceased had left a son to be the heir of his estate,
the surviving brother who stood next the inheritance, was pro-
hibited from marrying the widow, probably, for this reason, that
no unfair means might be practised to remove the heir. But
if he had died without issue, the brother was commanded to
marry her, probably, out of a humane attention to her happi-

123

happiness of the most tender and delicate sex, and
nourishes among them the most hateful passions. And
on these consequences is built the ulterior conclusion?
that polygamy is contrary to the law of nature.

I have no hesitation to admit as a philosopher, and a
christian, that the law of one wife, as prescribed by our
blessed Saviour, is most favorable to the interests of
human nature, and of civil society. Eut it should be
remembered, that, if the eastern nations are, at present,
and for a long time have been, inferior in the energies
both of body and mind to the people of Europe, this
ought not to be ascribed to any single institution, but to
the combination of an infinite variety of causes which
equally affect all nations in their decline. Once Asia
possessed that superiority which Europe now enjoys.
And how long is it since Saracens and Turks were an

ness, and, at the same time, to preserve the lineal descent of
the inheritance, otherwise, he was obliged to relinquish his
title to the next male relation who should fuiSl the condition.

These facts may serve to settle the question concerning the
lawfulness of marrying two sisters, which has so long agitated
Christendom. There can be no natural immorality in marrying
two sisters in succession, more than two brothers: but Moses,
who had not prohibited polygamy, only prohibited the marrying
of two sisters at the same time, lest the jealousies of love
should divide those whom the affections of nature had so close-

12i

overmatch for the combined powers of Europe ? No cer-
tain conclusion can be drawn on this subject from such
examples.

Equally uncertain is the next consequence imputed to
this patriarchal institution, — that it tends to strengthen
licentious inclinations and habits. Judging from the in-
terior of the families of the patriarchs, as it is presented
to us in the sacred history, nothing can be more un-
founded than this reproach. And, if we take our estimate
from the general manners of the east, according to the
representation of the best informed travellers in Turkey,
Persia, and Arabia, the women are distinguished for
their modesty and reserve, and the men for the scrupu-
lous circumspection of their deportment towards the
whole sex out of the precincts of their own families.
And, certainly, there is a wide difference, in the effect
produced on the heart, between a vagrant commerce
with mistresses, and the fixed connexions and duties of
marriage formed under the superintendence of the laws,
in which the union is permanent, the wife shares in the
property and honors of her husband, and both are occu-
pied in the modest and laborious cares of a household.
The idea of a wife, and of the grave and serious duties of

ly united. " Thou shalt not take a wife to her sister, besides the
other in her life-time^ to vex her."

125

a family, quenches that lust,* which is only inflamed in
the company of a mistress, the mere instrument of
vulgar, or voluptuous passion.

But, omitting every other proof, the principle of the
natural unlawfulness of the polygamic institution, derives
a more plausible support from the equality which is
always found to subsist between the numbers of the re-
spective sexes, the males having been found, by the most
accurate enumerations, to be nearly in the proportion of
thirteen to twelve, to the females, or more exactly, per-
haps, of twenty to nineteen. The design of the Author of
nature, it is supposed, is evidently indicated by tliis ratio
of the sexes, the small surplus on the side of the males
being allowed for the greater wastes occasioned by their
more hazardous occupations. But polygamy, in effect,
destroys this ratio in the marriageable part of the species.
— This is the argument ; and it is, certainly, not without
the appearance of great force. It may be replied, how-
ever, that it is ov1 ' within a recent period that the fact
of this equality has been discovered by the accuracy of
modern science — It could not, therefore, even to the

* From this remark, perhaps, might be excepted the un-
limited seraglios of their satraps and princes. Yet the volup-
tuousness of these supposed seats of sensuality cannot surpass
that of the greater part of the courts of Europe.

126

wisest men in the patriarchal age, have formed the basis
of any known law of nature.*

From these illustrations it results, that the practice of
polygamy, in that age, eould not be charged to those
venerable men as a crime against good morals. And its
immorality since the coming of Christ, the great moral
legislator of the universe, rests chiefly upon his positive
institution, supported by the law of the land. Before
that period, marriage Avas regarded among all nations as
a subject intirely of civil and political regulation. Nor
let it be imagined that female honor and safety were, in
that case, under an insecure protection ; or that the

* A better reason in favor of this patriarchal institution,
might, in my opinion, be adduced from the following consider-
ations; that the distinctions of poverty and wealth which ne-
cessarily grow up in society in a course of time, destroy, in
effect, that equality between the numbers of the sexes, as far
as regards the right of marrying, on which the argument in the
text is founded. Many men in society must always be too poor
to allow them prudently to marry. Many must evidently be
criminal in marrying, with the certain prospect before them of
introducing an offspring into the world only to want, misery,
and vice. So that what nature had originally made equal'
moral causes, which are no less certain in their operation, have
again rendered unequal. Hence, among the pious patriarchal
princes, the law of marriage, and the right to a plurality of
wives, might be regarded by natural reason, as being relative
to rank, and fortune; that is, to the ability of maintaining so
many families, rather than, strictly, to the ratio of the numbers
of the respective sexes.

127

public sense of crimes against chastity was weak.
Moses punished that class of crimes with death. And
fathers, husbands, brothers, that is, the entire nation,
will always be deeply interested in the honor of their
wives, their daughters, and their sisters, and be disposed
to guard it by the most energetic laws. Do we see, in
effect, that the rights of property are less secure, or
esteemed less sacred, because they are established ex-
clusively by the civil authority of the state, and take
their various modifications from the political views of the
legislator ? Is not the man who violates them esteemed a
thief, a robber, fraudulent, unjust, and an object not less
of public indignation, than of public punishment ? And
are the rights of chastity less sacred in the eyes of legis-
lators, or less capable of effectual protection ? The law
of Christ, indeed, aims at a sublimer degree of per-
fection than the patriarchal or Mosaic institutions. And
the high authority by which it is enjoined should impose
it as an inviolable rule of action on all his disciples ; and
the experience of its beneficial influence among christian
nations is sufficient powerfully to recommend it to all
wise and virtuous legislators.

OF THE DURATION OF MARRIAGE, AXD OF DIVORCE.

The next important question on this subject relates to
the duration of the marriage contract. Although some

128

nations in the East have admitted of temporary mar-
riages, and the experiment was again tried during the
madness of the late revolution in France, yet the evident
interests of society, and humanity, require that the union
of husband and wife should be permanent during the
common life of both. This regulation has been found to
impose the most effectual restraint on licentious passions,
it is the best security for domestic peace, and for the
public order of society, and affords the most powerful
motives, and the most favorable opportunities, for the
virtuous education of children, in which the undivided
efforts of both parents ought to concur.

The laws of marriage ought to be especially calculated
to protect the weakness of the female sex, and to save
from outrage the delicacy of their attachments. To this
end no principle, perhaps, is better adapted than the
perpetuity of the marriage contract.

But, under this head, the principal enquiry that has
occupied civilians and moralists is, whether any causes
exist which may, in consistency with virtue and good
morals, dissolve this contract, and divorce the parties
from each other, after it has been legally formed ?

Some civilians have unreasonably multiplied the causes
of divorce; and others, perhaps with as little reason,
restricted them to the single one ofunchastity, or infidel-

129

ity to the vows of marriage. This restriction they pro-
fess to derive from a humane and benevolent decision of
our Saviour on a captious question proposed to him on
this subject, forbidding a man to put away his tvife, ex-
cept for this reason alone. But they do not sufficiently
reflect that, in this decision, the great legislator of the
church is not prescribing an universal law of divorce,
but merely correcting an abuse, which had grown up by
time, in the exercise of a power which the laws, or
customs, of the country had given to Jewish husbands.
They had acquired, or usurped, the iniquitous preroga-
tive of dismissing their wives from their families and
protection, solely on their own authority, for the most
| trivial dislikes, or differences of opinion. This excessive
and unjustifiable exercise of an undefined power, he
j meant, with that benevolence which characterise- all his
j laws, to restrain. It is necessary in interpreting this law,
\ to distinguish between the right of repudiation claimed
by a Jewish husband, depending, as it did, merely on his
own authority and caprice, which is here so justly re-
strained by Christ, and the right of divorce, depending
on the impartial sentence of the law, which is exercised
; only through the agency, and by the authority of the
! public magistrate. To the former the rule of Christ,
which is merely a moral prescription to regulate the

I conduct of individuals in an important case, applies with
vol. ii. K

130

the greatest humanity. The latter is an object of civil
jurisprudence, and is to be governed by the constitution
of the judicial department, and the principles of the
national system of the administration of justice; and it
does not appear that out Saviour designs, in this sentence,
to prescribe any rule to legislators, and the organs of
the civil law; to whom alone belongs the legal right of
exercising the power of divorce. We are at liberty,
then, to examine all the causes which have at any time
been urged by moral writers as sufficient to dissolve a
union which virtue, and a just consideration of the publie
good, always intends in its formation to be perpetual.

But, in this enquiry, it should be laid down as a sound
moral and political principle, that divorces ought never
to be permitted but in cases of evident and great necessi-
ty. Few things contribute more to promote domestic
harmony, and to secure justice and kindness to the im-
becility of the sex, than the obstacles which the law
opposes to a dissolution of the conjugal union. In all
causes of difference that may arise between a husband
and a wife, when this is known, they must find a strong
and mutual interest in concession and moderation. But
if this high and sacred union were capable of being dis-
solved on slight occasions, those occasions would never
be wanting to the vicious. The smallest umbrages would
often be magnified into causes of the most cruel injustice-

131

The condition of perpetuity, besides its beneficial in-
fluence on the public morals, is a guard which reason
and humanity demand for the security of the weaker sex.
If the contract were transient, and uncertain, they would
commit their happiness in the most essential points too
often to the capricious will of men fickle in their attach-
ments, and rendered cruel by some new passiou.

In one point the laws of all nations have concurred ;
that infidelity to the vows of marriage by the dereliction
of chastity, is a sufficient ground of dissolving the matri-
monial union. This is admitted on a universal principle
of law and reason; — that fraud or failure in fulfilling
the condition of a contract exonerates the innocent and
deceived party from its obligations. In marriage, there-
fore, when the rights of one of the parties are alienated
and transferred to the possession of another, the contract
is violated in its most essential article. And the law may
justly grant a divorce to the injured party suing for it j
yet on such terms, and this would be an additional
security to morals, that the party offending should never
enjoy the privilege of marrying again. But although
infidelity be a reasonable cause of divorce, the offender
ought never to be allowed to plead his own fault in order
to obtain a dispensation from the bond of matrimony.
Faults ought to be punished, not rewarded. And, how-
ever painful the idea of infidelity in a husband, or a wife,

132

may be to the jealousy of honor, or of love, yet there
are situations in which it is preferable to suffer the
severest pains of the heart in silence, especially for a
wife, than to submit to the consequences of a forced
separation.

Obstinate and continued desertion may, for a similar
reason, be esteemed a justifiable ground of divorce, when
it can be proved to have taken place without just cause.
Such causeless and voluntary desertion defeats the end
of the matrimonial contract, and is, as in the former
ease, a fraudulent violation, or abandonment of its con-
ditions. As in that case, likewise, it would be contrary
to good morals to yield to the offending party the right
of contracting a new marriage.

To these causes I scruple not to add habitual intoxi-
cation, as defeating the principal ends of marriage ; the
happiness of the parties, and the proper care and educa-
tion of their offspring. It it be the wife who is addicted
to this viee, there can be no security for her fidelity; if
it be the husband, his wife can have no defence against
the grossness, or inhumanity of his treatment. She be-
lieved that she married a man, but she finds herself
united only to a brute.

Cruel and barbarous treatment, on the part of the
husband, is admitted by the common law, to be a reason-

133

able ground of the separation of a wife from his bed and
board. It is, in my opinion, an adequate cause of divorce,
where it can be sufficiently ascertained to the judgment
of twelve competent and impartial men. Inhumanity in
the husband, not less than infidelity in the wife, is a
violation of all the ends and conditions of the marriage
contract. If this be denied, because there is no uncer-
tainty in the offspring in the one case, as there is in the
other; I answer, that it is a vile and base idea of mar-
riage to suppose that it is merely making a woman the
vulgar instrument of giving an heir to an estate.

Other causes have been assigned by different writers,
but, apparently, with less reason, as affording sufficient
grounds of divorce. Among these has been given great
contrariety of temper, which mars the mutual happiness
of the parties. This cause is infinitely too vague to be
designated in any law with that precision which is
requisite to the due administration of justice. But, be-
sides this inconvenience, the most ill-disposed would
always have too much in their power. Of the general
principle a dreadful abuse was made, at one period,
during the late revolution in France.

Certain diseases, supposed to be incurable, have also
been enumerated, among the adequate causes of divorce.
But, not to mention the difficulty, not to say impossi-

134

bility of ascertaining what diseases, or whether any, are
absolutely incurable, a peculiar cruelty seems to be
involved in the principle. After the fortunes, and happi-
ness of two persons have become so intimately united
together as they are by marriage, is it not most unrea-
sonable and inhuman, that because it has pleased divine
providence to afflict one with severe disease, the other
should possess the power, not only to add to the calami-
ty, but to take away from the miserable sufferer, Mho
ought to be so tenderly cherished, and protected, the last
ray of consolation and hope ?

The last of these imperfect and inadequate causes of
divorce which I shall mention, is mutual consent. — To
the willing, it is said, no injury is done. — Consent, I
answer, may be a sufficient ground of separation ; not of
divorce. Divorce implies the right of marrying again
in the party in whose favor it is made. This would often
prove too great a temptation to the strongest, or most
malignant to harrass the other into consent by intolera-
ble vexations. This was also tried in France during that
period of confusions, and was found to make confusion
only more confounded.

Individual cases of hardship must undoubtedly arise
from a rigid adherence to the principles above laid down.
But no tribunal can be constituted in human society

135

which can be safely vested with the power of suspending
the rule, or of judging, in all cases, of its equitable ex-
ceptions. Society, like the universe, must be governed
by general laws.

Thus have I treated of the relation of marriage both
before, and since the christian sera, as far as respects
the equity of the polygamic, or the inonogamic institu-
tions, chiefly with the view of rescuing from licentious
reproach the ancient worthies of the church, and fathers
of our religion. I have endeavored, in the next place,
briefly to state the causes which may, at any time, be
safely and reasonably pleaded to justify the dissolution of
a connexion so sacred, which has once been rightfully
formed.

OF THE CRIME OF AN ILLEGAL COMMERCE OF THE SEXES.

Having spoken of the marriage contract formed under
the sanctions of the civil law, and considered it, as limited
by the christian law, to take place between one person
only of each sex, I shall now proceed to point out the
crime of any clandestine and illegal unions which form
the principal offence against this most important of the
domestic relations — In proportion as loose and vagrant
eonnexions between the sexes, exist, and are justified, or
connived at by public opinion, or are pursued by private
vice, marriage is regarded as inconvenient and falls into

136

disuse,* men become profligate and enervated ; women
are rendered unhappy and contemptible in proportion as
they are dishonored ; and children, growing up without
proper example and education, become ignorant and
vicious; and, from all these causes, the public morals
and the interests of the state suffer deep and irretrievable
injury. There is no vice which men appear to be so
willing to excuse to themselves ; yet, none in the whole
catalogue of crimes, is productive of greater evils to
society. The licentious, because they do not immediately
suffer from the consequences of their seductions, are
found to become unfeeling, cruel, and treacherous. Re-
morselessly they leave the victims of their pleasure to the
most exquisite sufferings, to infamy, and ruin. If these
unfortunate women ever return to a sense of virtue, they
are overwhelmed with anguish and shame : but if, as is
too likely to be the case, a vicious appetite, or despair
from the loss of character, tempt them to a life of pros-
titution, a fatal gulph is prepared for the public morals.
But who can estimate the cruel injuries done to an un-
acknowledged and abandoned offspring, whom the guilty
father had no right, for his own pleasure, to bring into
existence, in order barbarously to give them up to want,
disgrace, and vice ! If violations of property are punished
with imprisonment and death, what pains can be too
severe for violations of chastity which draw after them a

137

train of so much more aggravated evils ! It diminishes
the guilt but little, that they are, most commonly, com-
mitted with the consent of the unhappy sufferer: it is the
difference only between swindling and robbery.

Women, whose frailty deserves compassion, have
usually been the sole, or the principal sufferers from this
crime, by the natural dangers which grow out of the
female constitution, by the severity of public opinion,
and their own terrible sensations when left alone to all
the consequences of their lost virtue. If the law would
ever impose an effectual restraint upon an evil so per-
nicious to society, it must subject the aggressor sex, who
are chiefly culpable, to some pains equivalent to those of
which they become the occasions to their seduced and
unhappy companions.

Men who would reprobate in the strongest manner the
arts of seduction employed on tender and inexperienced
females in the wealthier and more polished circles of
life, too often feel little compunction at corrupting the
virtue, and destroying the happiness of women in the in-
ferior classes of society. The pride of rank and fortune
disqualifies them from sympathising with the feelings of
those who are far beneath them, as if their sensibilities
were less exquisite, and the loss of character were to them

a less evil, than to females of better condition. Their in-
vol. ii. s

138

feriority, indeed, renders them more liable to the unprin-
cipled attempts of seduction ; but the loss of virtue and of
character is not less a source of extreme wretchedness,
and often becomes the direful impulsion to abandoned
prostitution, and, at length, to the perpetration of th©
deepest crimes. When women, in order to guard one
virtue, the most difficult and important to be preserved,
have collected the whole of female honor into a single
point, that it may be the more strenuously defended, if
they have been seduced to deliver up this fortress of their
fame and character, they commonly abandon with it all
their other virtues. And the seducer, who, by vows and
protestations, has betrayed too credulous innocence, is
chargeable, in the sight of Heaven, with all the anguish,
and the guilt which follows. What then must be the" de-
gree of that anguish which follows the fruit of unlawful
love, when woman, whose maternal feelings are so ex-
quisite, who would survey with such pride the infant
which sbe could honorably own, who would bend over it
with such extacy, who would rush into the midst of
flames to rescue it from danger, but, unlawfully become a
mother, is often tempted to stille all the feelings of na-
ture, and, in a moment of distraction, to remove it forever
from her sight, or herself to become its murderer, to hide
her own disgrace ! — If the deep aHIiction of a deluded suf-
ferer, if the loss of so many pleasures, and so many hopes,

139

as accompany the innocence of a virtuous woman, if the
vices, the shame and misery which follow the dereliction
of virtue in the sex, can aggravate guilt, how aggravated
must be the guilt of her seducer ! And how base must be
the heart of that man who, for a moment of thoughtless
pleasure, will hazard the bringing of such evils upon one
whom love should cherish, whom honor and generosity
should protect !

There are men whose honor would shrink from the
enormity of bringing disgrace and ruin on the innocence,
and the confiding simplicity of a young woman in a
decent station of life, who are little scrupulous at se-
ducing married chastity. They encourage themselves by
the idea that this crime is more secure from the dis-
grace of detection, and the foul dishonors which blast
the fruits of unlawful love in an unmarried state. — Yes,
but it is never perfectly secure. And is it not then
greatly aggravated by the dishonor and affliction of a
whole family, and by the anguish of a husband robbed,
at once, of his honor, and his principal treasure ? No re-
ward can purchase back the peace of mind of an injured
husband, and father of a family. Death would often be a
preferable evil. — But, admitting that the crime could be
preserved a perfect secret, is it, in any degree, less a
crime on that account ? — The criminality of an action is
not to be estimated by the consequences which may hap-

140

pea to an individual in a particular case, but by those
■which would flow from admitting the principle of such
actions as a rule of general conduct. For no individual
has a right to have peculiar rules of duty, or peculiar ex-
emptions from general rules established in favor of his
passions. What then would he the effect of this moral
principle, that secrecy, while it protected, also justified
an adulterous commerce ? To what jealousies, suspicions,
distrusts, infelicities, would it not give rise ? No ties of
duty, then, would prevent the rising of a new passion in
the breast of a married woman. All domestic confidence,
all the harmony of society, would be destroyed.

The seduction of virgin or of married chastity, con-
sidered in the lights in which they have been placed, will
generally be condemned by the reason of all men ; there
are not a few, however, who justify, or excuse illegal con-
nexions with those who have already lost their virtue, or
are prepared to make a mercenary sale of it. Although
this may appear, to careless observers, to be less culpable
than the cases which have been just mentioned, it is,
nevertheless, a crime highly pernicious to the public in-
terest, and destructive of the moral habits of the people.
And a great portion of the species it necessarily renders
most worthless and most miserable. Society is deeply in-
jured by a practice which effeminates and debauches the
manners of its citizens, and, especially, which discourages

14i

marriage, and prevents the forming of regular and or-
derly families, which are the strength of a slate, and the
principal source of its prosperity. And certainly no vice
more entirely depraves the mind than this low commerce
of gross sensuality. It hlunts the fine and delicate percep-
tions of the moral sense ; and perhaps the greatest crimes
which ever disgraced human nature have taken birth
amidst the scenes of loose and profligate pleasure.

Having pointed out the criminality of any union of the
sexes not authorized by the laws, under whatever form it
may take place, I conclude with a brief answer to this
important moral enquiry ; how far does reason, and a just
regard to chastity require that men should impose a re-
straint upon their conduct, and their passions ? The rule
of the gospel is most conformable to the dictates ofa sound
reason, that the guards of virtue ought to be placed upon
the heart and the thoughts. It is of the utmost importance
to preserve the imagination and the fancy chaste ; it is
otherwise in vain to hope to subject the manners, to the
laws of modest}' and virtue — a loose wit, indelicate con-
versation, lascivious pictures, odes, scenes which tend to
inflame the passions, the visions ofa sensual fancy indulged,
are culpable in the next degree to actual prostitution.
The law of God requires that our thoughts shall not sin ;
and the law of reason confirms its dictate.

142

LECTURE XX.

©F THE DUTIES OF PARENTS AND CHILDREN.
CONTENTS.

Peculiar duties of parents, present maintenance — educa-
tion— provision for future life. — Present maintenance
of small importance unless a child be educated in such
arts as will enable him to maintain himself, and render
him in a great measure independent of the untoivard
accidents of life. — Education should respect chiefly the
forming of good moral and religious principles. — Ob-
jections to this branch of education — the objections an-
swered.— Of the rights of parents — of the duties of
children — their virtues connected with the national vir-
tue, and prosperity. — Interpretation of the fifth com-
mand of the decalogue of Moses.

FROM marriage arise the next important relations
of parents and children. Of these it will be necessary to
take only a very brief review. The instructions of reli-
gion, the laws of our country, and the public sentiment,
have left little to be learned on these heads ; and they
have been embarrassed by few controversies.

143
OF THE PECULIAR DUTIES OE PARENTS.

As parents have become the occasion of giving an in-
voluntary existence to their offspring, they are charged
by nature and religion with the care of their happiness.
Their general duties, therefore, having always in view
this ultimate end, may be comprised under the heads of
present maintenance, education, and provision for the fu-
ture comfort of life.

By maintenance is intended subsistence while they are
young, and incapable of devising and using the necessary
means for their own support. Nature indicates this duty
by furnishing, in the breast of the mother, a rich and de-
licious nourishment for her infant. She further indicates
it to both parents by that strong instinctive propensity
which she has implanted in their hearts to cherish, pro-
tect, and assist their offspring during the imbecility of
infancy. Prompted to this duty by the most powerful im-
pulses of nature, there can, certainly, be little merit in
fulfilling it ; but, there is, on that very account, propor-
tionably greater ignominy and guilt attached to its ne-
glect. Accordingly, there are few vices against which
deeper detestation is expressed by all men. A mother
who abandons her infant in order to pursue her own
pleasure, or through defect of natural feeling ; a father
who, through indolence, or vice, leaves his child to want,

or suffering, which he might he able, by virtuous exertion,
to remove, is justly esteemed Avorse than a barbarian.

But a parent fulfils only a small part of his duty who,
contented with sustaining his children during their feeble
and infantile state in his own family, neglects that useful
and efficient education which will enable them to make
provision for their own subsistence and comfort in future
life, and to transmit the same powers to the generation
which may succeed them. Whatever fortune a parent,
at his death, may leave to his children, he has not ac-
quitted himself of the sacred obligation contracted at their
birth, unless he has, in a government like ours, in which
there is no hereditary nobility, and no entailed wealth,
endeavored to render them, by an education correspond-
ent to their condition in society, independent on fortune.
Often have Ave occasion to behold great and afflicting re-
verses in the external circumstances of opulent families,
and miserable are they Avho have not been taught with
virtuous equanimity to bear them, or who have no re-
sources in their own faculties, bodily, or mental, to apply
them to other means of subsistence. The mere instinctive
affection which leads a parent to maintain his child in
idleness, and pleasure, or to supply his pecuniary Avants,
far from being a virtue, too frequently degenerates into
vice, and becomes a foolish fondness that disappoints its
own aim, and when it would raise them to honor, only

1*5

sinks them into insignificance and contempt. The paren-
tal affections, in order to he virtuous, ought to he regu-
lated by a firm inflexible sense of moral obligation. It is
then only that they become noble and dignified principles
of action, and instead of consulting the momentary grati-
fications of children, through a fond imbecility of mind,
pursue only their more enlarged and durable interests,
to which just and prudent restraints become often the
most useful, though sometimes the most painful, offices of
a wise education.

Education, even as it respects the humblest orders of
society, embraces a field of great importance and extent.
Kature has given to man the powers of action, it is edu-
cation which directs their operation : — the soil is pre-
pared by nature, but the harvest it shall produce depends
upon its culture. It is education chiefly which makes
man what he is ; whether it be well, or ill conducted. la
the idea of education I include not only what is conveyed
into the mind by direct and positive instruction, but
every impression which is received directly, or inciden-
tally, by precept, example, or intercourse with mankind,
which contributes to form the character. This opens a
wide scope to the attention, circumspection, and care of a
virtuous parent. One of the first of parental duties is to

have children initiated in some useful arts, and trained
vox. ii. t

146

to such Wbits of prudent industry, as are requisite for
procuring a sure subsistence through life, without the
hazard of falling, at length, as a burden on society, or the
temptation of becoming injurious to it. And in the mid-
dling and superior classes it is perhaps still more neces-
sary to awaken a generous ambition of becoming useful,
or of rising to distinction in it by their virtues and their
talents.

But that at which domestic education ought principally
to aim, and which is greatly aided by the preceding at-
tentions, is the moral and religious cultivation of the
heart and manners. To the attainment of this primary
object of parental care, it is of high importance that the
mind should be early imbued with the principles of piety
and virtue ; and that, by a prudent, steady, and dignified
discipline, the manners should be formed to a serious res-
pect for the institutions of religion, to the exercise of the
liumane and benevolent virtues, and to a noble self-com-
mand imposed on all the proud, selfish, and licentious pas-
sions. By education, skilfully applied, the manners, habits,
and sentiments of youth may be formed to almost any
standard. But if we do not, in the earliest periods of life,
take possession of the mind by good principles, maxims
favorable to vicious indulgence will, almost necessarily,
take birth amidst the inconsideration and the passions of
youth. And if a vigilant and prudent discipline be ne-

1*7

glected, tliere is infinite hazard of its being led astray by
the companions which inexperience, and the thoughtless
impulses of pleasure, naturally incline them to select.

But the best precepts will lose their effect unless they
are accompanied by a virtuous and pious example. The
principle of imitation is a much more powerful instru-
ment of morals in youth than merely depositing in the
memory the general maxims of duty. A serious respect
to the institutions of religion, a pure and chaste conversa-
tion, the example of strict integrity, of warm and active
benevolence, of prudent and circumspect manners, espe-
cially in the presence of youth, as they are duties of all
times, and of all persons, are peculiarly incumbent on
parents in the education of their children. It is espe-
cially a duty to inculcate upon their tender minds just sen-
timents of the Divine Being,— .of his infinite perfection,
— of his universal government, — of his moral inspection
of the actions of mankind, — and to place before them con-
tinually, in an amiable example, the beauty of virtue, the
dignity of piety. Unless the law of morals be supported
by the force of religious principle, it loses its most pow-
erful control over the human mind.

It requires, however, prudence of conduct, and great
amiability of temper, to render religion acceptable to
youth, and to derive the full benefit to their manners from

14S

its influence. There is sometimes a shade of austerity and
gloom thrown over the face of piety by its real, but mis-
taken friends, which is calculated to alienate rather than
allure the young mind, and inspire it with respect and love.
True religion is digniiied, serene, and mild ; it invites
cheerfulness, while it restrains levity ; it promotes grav-
ity, though an enemy to gloom ; and cultivates a noble and
manly devotion infinitely distant from the dark and dis-
mal countenance of superstition ; and is equally distin-
guished for the practice of all the social virtues, as for the
serious and decent discharge of all the offices of piety.
Religion should ever be made respectable and engaging
by the liberality of its spirit, as well as the purity of its
manners.

Some writers, influenced by their antipathy to certain
principles of religion in which they had been early initi-
ated, and the impressions, or the fears of which after-
wards cost them much pains to efface, have run into the
opposite and absurd extreme of maintaining that all reli-
gious instruction is pernicious, filling the mind only with
prejudices, the more difficult to be eradicated because
they are so deeply fixed by the force of superstitious fear.
The mind, say they, ought to be left free and unembar-
rassed by any early prepossessions, to form, in time, as
the understanding evolves its powers, its own principles.
These writers, in their zeal against religious prejudice*

149

seem not to have recollected that the young mind, contin-
ually receiving the impressions of all objects with which
it is surrounded, must necessarily be affected with preju-
dices of a different kind, while reason is not yet sufficient-
ly mature to form a sound judgment of the opinions, and
examples, which are continually soliciting its attention.
It will naturally receive a depraved bias from the crude
and false sentiments, and the pernicious examples in the
midst of which it breathes as in an infected atmosphere ;
or ignorance will prepare a soil in which vice or a grov-
elling superstition will almost necessarily plant its cor-
ruption. From a fair and candid view of these circum-
stances, we have just ground to conclude that a moral edu-
cation on the principles of a rational piety, or, if this ex-
ceed the talents of the parents, conducted on the religious
principles of even any regular sect of christians, although
it may be mingled with many speculative errors, is infi-
nitely to be preferred to those accidental, and, too com-
monly, vicious impressions, and habits of thinking, to
which uninstructed youth are exposed in their casual in-
tercourse with society.

The next head of parental duty which I have named,
regards the provision which a parent should make to as-
sist the establishment of his children in the world, or
should bequeath to tlujm at his death. But this is neces-
sarily affected by so many circumstances that few precise

150

and definite rules can be prescribed concerning it. Sel-
dom, indeed, is there any defect on the part of parents, of
a desire to accumulate fortune, and to provide for the de-
cent and honorable introduction of their children into life.
But this natural and laudable desire is often counteracted
in its aims by the stronger love of indolence, ostentation,
or pleasure. But no considerations are more important
to the happiness of children, and their comfortable pro-
vision, than such a judicious economy in the stile of
living, as will not accustom them to indulgeneies, and
create expectations of a future establishment in life,
which must probably be disappointed. Few mortifications
are so hard to be borne by the young as the being deprived
of customary enjoyments to which all their tastes and
habits have been formed ; and being thrown down from
that rank in society in which they expected, and have been
accustomed to move. And whatever property he may have
to bestow upon them at his death, or whatever assistance
he may have it in his power to render in his life, the im-
partial duty of a parent forbids any capricious distinction
in the distribution among his children ; and in a free gov-
ernment, the equality and fairness of popular institutions,
should discourage any extraordinary rights of primogeni-
ture.*

* An important maxim has existed in several agricultural
countries in which are found the simplest forms of civil society,

151

©F THE RIGHTS OF PARENTS, AND THE DUTIES OF
CHILDREN.

Out of the obligations of parents to provide for the
happiness of their offspring arise, on the one hand, the
rights of parental authority, and, on the other, the duties
of filial obedience and affection. Some ancient nations
appear, from their history, to have invested parents with
an extreme authority over their children, a consequence,
probably, of the rudeness of their manners, and the de-
fect of their civil institutions. The Romans, in the first
ages of the republic, made every father a supreme magis-
trate in his family, and clothed him with the power of life
and death. This was an egregious abuse of the depend-
ence of children. No man derives from nature a right to
become the occasion of existence to a helpless offspring,
only to render them miserable. TJ:e rights of parents
spring out of their obligations. Obligation implies every
power necessary to give it effect ; and implies only those
powers. If, then, it be the duty of a parent, by a prudent
education adapted to his condition in life, to prepare his
children to be useful citizens, to cultivate their minds in

that any discrimination in the distribution of a parent's property
at his death, should be in favor of the youngest son ; on the idea
that he must probably have received the least assistance during
his father's life. In this distribution, therefore, the paternal
mansion usually passes to him.

152

virtuous principles, and to form their manners to virtuous
habits, he possesses, b\ the law of nature, the right of
coni lolling their actions, and directing their pursuits so
far as is requisite for the attainment of these ends. And
if, before their reason has arrived at sufficient maturity
to govern their own conduct with prudence, they cannot,
by mild and persuasive means, be induced to apply with
diligence to the regular discharge of their duties, he pos-
sesses the power of moderate coercion. But coercion, as
it ought ever to have in view solely the good of the child,
and to be exercised with calmness and dignity, should
never be exerted to indulge caprice or passion. Barba-
rous corrections are not justified by any rights which na-
ture confers on a parent. The utmost penalty to which
his lawful power extends, is cutting ofT an incorrigible
child from the privileges, and advantages of his family.
But to sell his child to slavery, as is practised by some
barbarian nations, or to execute upon him capital punish-
ment for any real or supposed offence, is abhorrent from
the feelings, and an enormous violation of the laws of
nature. But during the minority of a child, while his
immature judgment, and his inexperience, render him in-
capable of consulting, in the best manner, for his own in-
terest, the parent, if he be in that situation in life which
renders it necessary that he should gain his living by the
strenuous exertion of his own talents bodily or mental,

153

may chuse a profession for his infant, and require him to
give his diligent attention to acquire a competent skill in
it, that he may he put in possession of an honest and suf-
ficient resource for his future maintenance. He may,
with the same view, and under the pressure of the same
necessity, bind his infant to service for a limited time.
But the benefit of the child can never require, and, there-
fore, no pretence of this kind can ever justify his being
sold to perpetual bondage. We may, perhaps, lay it down
as a general rule, that whatever unnecessarily opposes
the happiness of a child is not within the rights of a pa-
rent. For the same reason, it is not consistent with his
duty to consult the wealth and grandeur of one branch of
his family, at the expense of the feelings, the comfort,
and the reasonable expectations of the others.

or THE DUTIES OE CHILDREN.

Nature lays the foundation of the duties of children in

that strong instinctive affection which attaches the parent

to his offspring, and which consequently both requires,

and prompts, on their part, some correspondent return of

dutiful attachment and love. This principle is greatly

strengthened by the tedious imbecility, and dependence

of children on the parent's care ; during which time the

force of habit, and the continual reciprocation of offices

of mutual endearment, aid the transition of the affections
vol. ii. v

15i

and augment their attractions on each side. Every pain
endured for children, every solicitude called forth by
their wants and their dangers, every care bestowed upon
them for their protection, their provision, their education,
cultivates and increases the parental affection, and de-
mands the purest returns of filial duty and submission.
And the richest returns a good son can make to a virtu-
ous parent is his wise and successful improvement of all
the means which parental affection has provided for his
own honor and interest. A higher pleasure cannot be en-
joyed than that delicious pride which swells the breast of
a worthy parent on seeing a beloved son fulfilling his
career honorably and usefully ; and a higher delight can-
not be tasted by an ingenuous son than the consciousness
of imparting this happiness to such a parent. It is a
saying of Plutarch,* it is forbidden to do injury to others ;
but it is unjust and impious not always to speak and act
in such a manner as we know will give pleasure to our
parents. And Epaminondas exhibited a genuine example
of the principle of filial duty after his celebrated victory
at Leuctra, when, amidst the congratulations of his friends,
and the applause of all Greece, he said, that nothing in
the triumphs of that day gave him so much pleasure as
the consideration, that his father and mother, who were
poor persons at Thebes, were still living to enjoy his

* Plut. de amor. frat.

155

glory. — Such a son will always delight to render his pa-
rents happy by his virtues ,• if they are liable to errors,
he will study to cover them with the mantle of filial love ;
if, sometimes, they betray any weakness or caprice of
temper, he will recollect how much they have endured
for him ; and, in their declining age, it will be peculiarly
grateful to soothe their sorrows, to relieve their necessi-
ties, and to repay, in some measure, to their infirmities,
the debt of his early years. The Persians, by a law,
obliged children to maintain their aged, infirm, and in-
digent parents ; a dutiful son needs no law but his own
heart.

All filial duties, however, are so conjoined with a wise
and virtuous education on the part of the parent, that, if
this is neglected, he loses much of his claim to the affec-
tionate obedience and deference of his child through life.
A good education in sober, industrious, moral and religious
principles and habits, forms the strongest tie which can
subsist between parents and children. And filial duty,
resting on this foundation, is not only the chief strength
of domestic union, and happiness, but the surest basis of
all other virtues. It is justly said by Cicero, in his ora-
tion for Plancus ; fundamentum est omnium virtutum
pietas in parentes.* Not only is it the source of domestic
felicity and harmony in individual families, but where

* The foundation of all the virtues is filial piety.

156

filial piety and good family discipline, and education, come
to be incorporated into the characteristic features of the
national manners of any people, — as they are the basis of
public virtue, they are commonly the certain pledge also
of the public prosperity. These reflections w ill assist to
furnish the true interpretation of the fifth command-
ment of the Mosaic decalogue, with the annexed promise,
which appears to have been often but imperfectly under-
stood. " Honor thy father and thy mother, that thy days
may be long upon the land which the Lord thy God
giveth thee.*' This precept and promise is evidently ad-
dressed to Israel as a community ; and is founded upon
the universal moral order of providence established over
the world. Virtuous and well governed families form
the basis of public order. A dutiful offspring moulded
under an excellent parental education, will, in their
purity, hand down the civil and religious institutions of
the republic to the following race, and transmit, with
the same care, the public manners uncorrupted. Thus
does filial duty become the sure foundation of the public
virtue, and, with it, of the stability and prosperity of the
nation. The full import of this law, with its annexed
blessing, then, may be expressed in the following peri-
phrasis:— while the families of Israel, and it is true of
every other civil community, shall preserve the domestic
education tuid discipline prescribed in the national law.

157

pure, and the youth of the nation shall remain modest,
docile, and dutiful, so long shall you continue to flourish
as a people, in the laud in which God hath planted you;
for so long will continue to flourish those virtues on
Which the happiness and stability of nations depend.*

* It is impossible that this promise should bear a reference
to individuals in their separate capacity; because long life has
never been the peculiar and exclusive blessing of filial piety,
though the stability of nations has been always connected with
virtuous men, and national virtue with the modesty and obedi-
ence of youth. This command to youth to honor and obey their
parents, with this peculiar promise annexed to it, was intimate-
ly conjoined with the system of domestic education established
among that wonderful people. Nothing can exceed the care
and attention of the great legislator of Israel to have all the
children of the nation perfectly instructed in their religion, and
their duties as citizens and as men, and to institute in every
family such a faithful discip.ine as would most effectually se-
cure this end. After having formed that wise and extraordina-
ry code which embraced the whole compass of their religious,
civil, and moral institutions, he adds, under the most solemn

sanctions : ind ye shall teach them to your children, speaking

of them when thou sittest in thy house, and when thou walkest
by the way, when thou liest down, and when thou risest up.
And thou shalt write them upon the doorposts of thy house, and
upon thy gates. And, for what purpose was all this pious
zeal ? — For the same expressed in the commandment just
quoted : — that your days may be multiplied, that is, the clays of
the nation, and the days of your children in the land which the
Lord sware unto your fathers to give them as the days of heaven
upon the earth. Evidently implying that, if they should con-
tinue to maintain this holy care in the education of their fami-

158

The duties of children do not cease with their depend-
ence. In the breast of an ingenuous child, the remem-
brance of a thousand obligations, and a thousand endear-
ments, will last through life ; and the filial affections,
strengthened by time, reflection, and experience, will
display themselves in innumerable and nameless delica-
cies of attention to the wants, the infirmities, the wishes
of parents ; especially in their declining years, when it
often happens that, having lost the greater part of their
early friendships, and, with them, their finest relish for
life, they have left no other consolations but those of
religion, and the affections of their children.

lies, and their children should grow up under this culture duti-
ful and obedient to all their instructions, their national exist-
ence and prosperity should be prolonged under the good
providence of God, and be co-extensive in point of time, with
their virtues.

Similar ideas with regard to the institution and discipline of
youth prevailed in most of the states of antiquity, as long as
they preserved the simplicity of their manners, and the energy
of their character. As we see strikingly exemplified in Xeno-
phon's account of the Persian institutions ; in Livy's history of
the manners of the primitive Romans ; and in the picture drawn
of the Spartan education by the Abbe Barthelemy. Pythagoras,
who borrowed a great part of his institutions from India, es-
tablished in his school a noviciate of seven years silence, in
which his disciples were permitted only to listen, with respect-
ful attention, to the precepts of their master, and to practice
the lessons of submission and obedience which were prescribed
to them.

159

LECTURE XXI.

ON THE RELATION OF MASTER AND SERVANT.
CONTENTS.

The true origin of the relation of servant, and master.—-
Various ways of becoming subject to service — reciprocal
duties of master and servant.— Jit the beginning of the
Christian (era, the only servants xvere slaves.— The dif-
ference between them—The question, whether slavery be
lawful.— The causes which have been alledged for
slavery, — crimes, — debt, — captivity. Their insufficien-
cy.— The iniquity of the African commerce for slaves :
Of slavery in despotic, and in free countries. — The
question, whether justice now requires the universal
emancipation of the slaves in the United States ; or,
whether it can be effected consistently with the public
safety. The importance of attempting it, if it be now
possible. — The obstacles, however, hardly to be sur-
mounted.

THE next domestic relation which occurs to be con-
sidered is that of master and servant.

In the progress of society, and under the operation of
laws which secure to everv citizen the fruits of his own in-

160

dustry and skill, distinctions in property will necessarily
arise. Some, by a well-directed, or fortunate industry,
will accumulate wealth, which will enable them to pur-
chase the services of others, who, by mismanagement,
misfortune, or the want of address, having fallen into pov-
erty, will be obliged to sell their labors. This is origi-
nally the only reasonable ground on which the relation
of master and servant can be founded. It is bottomed
upon the principles of all fair and equitable commerce.
Labor is a commodity brought into the market; and the
price of it must depend on the number of those, on the
one hand, who desire to purchase, and of those, on the
other, who are obliged to sell. In a contract thus formed,
under the supreme guardianship of the laws, the servant
is always secured against injustice and oppression.

A man, through the pressure of poverty, may not only
be obliged to give his own services for hire ; but he may
reasonably subject his children to a temporary servitude
for their benefit. At the same time, he has it always in
his power, of which a prudent and humane parent will
doubtless avail himself, to secure for them by contract,
comfortable provision, and equitable treatment ; and to
provide for them such an education as will enable them
honestly, and decently, in their station, to obtain their
own living, after they shall be restored to their freedom.
— If the children of the poor, are neglected by their pa-

161

rents, or if they have early become orphans, and are likely
to fall into want, and, by the infelicity of their situation,
to be led into profligate habits, and thus become a charge,
or a nuisance to society, society may enter into the rights
of parents, or rather, may exert a right inherent in itself,
and necessary to its own preservation, and happiness, of
disposing, for a limited period, of the service of these
children, under equitable conditions, calculated for the
mutual benefit of the master, and of the child so bound to
service.

These various ways of forming the relation of master
and servant, may all be considered as being founded in
contract, in which an adequate price is paid by the mas-
ter for the labor of the servant, and the servant repays,
by his labor, the benefits he receives.

The duties of masters and servants may all be summed
up in equity on the one hand, and fidelity on the other.
If it be asked what equity, or fidelity requires in these
relations respectively, I answer, the fulfilment of what-
ever lawful engagements are expressly stipulated in the
contract, or are reasonably presumed to be implied in it :
and these reasonable implications are always to be judged
of according to the general and known customs of the
country. — I say the fulfilment of all lawful engagements ;

because no contract for the performance of things in
vol. ii. x

162

themselves unlawful, is obligatory. It contradicts an an-
tecedent, aad superior obligation. No power can justifia-
bly impose a command which requires the violation of any
moral, or religious duty ; and no subordination in rank
can justify obedience.

Servants, notwithstanding the humility of their state,
are susceptible of the common feelings of human nature.
And although they are secured by the laws against ex-
treme oppression, yet their dependence, which may often
expose them to the insults of pride and caprice, puts their
happiness very much in the power of their superiors.
Hence arises a duty on the part of the master, springing
out of the general obligations of humanity, to avoid all
unnecessary harshness ; all haughtiness and insolence of
treatment and demeanor towards his domestics, and to
address them, at all times, with such kindness of speech
and courtesy of manner, as shall make them, as little as
possible, sensible of the disadvantages of their situation in
society.

Another obligation of still superior importance lies on
every master, arising out of the universal law of piety
and virtue ; and that is, to employ the influence which his
station gives him in promoting the good morals of his
domestics, and to afford them such means of instruction,
and to establish such a prudent discipline in his family,

163

as will tend to preserve them from the vices, and the
temptations to which, hy their state, they are peculiarly
exposed. The highest duty which religion and humanity
exact of a man whom Providence has placed in such a
superior relation, is to protect and promote their virtue ;
and in this henevolent and most reasonahle case he will
find also his own interest. Xo service is so faithful as
that which is governed hy strict principles of morality,
and religion.

"When Christianity first appeared in the world, the re-
lation of servant, as it is here explained, nowhere ex-
isted. We find in that age only masters and slaves. The
mild genius of the christian religion early ameliorated the
condition of that unfortunate class of men ; and its benev-
olent influence, concurring with other causes in the pro-
gress of society in Europe, has at length entirely banished
slavery from that highly civilized portion of the globe.

This abject state of human nature still exists over all
the continents of Asia and Africa, and has unhappily been
suffered to mingle itself with the original institutions of
our own country. A slave is not, like a servant, bound
by contract for a limited time, and under specified ar.d
reasonable conditions, to perform particular services ; but
is the absolute property of his master; and the kind and
degree of his services have no other limit than Lis mas-
tei's will.

16i

On this subject a most important moral question pre-
sents itself : Is slavery on any ground consistent with the
natural laws of justice and humanity ? Three causes have
been stated by different moral and political writers as
sufficient to justify tbis degradation of human nature :— .

ciimes, — debt, — and captivity. Criminals of certain

grades, it is true, may justly be confined to hard labor
under the authority of the public magistrate, in order to
repair the injuries committed by their crimes, or to in-
flict a salutary punishment for such as cannot be repaired.
Fraudulent debtors may well be subjected to a similar
correction. But it would be cruel to inflict on misfortune
a penalty which should be reserved only for crime. Crim-
inals of this grade, however, should be regarded only as
servants of the public, and never subjected to the power
of injured individuals. If creditors were to be constituted
the masters, it would be necessary to confer on them such
rigorous rights as could not fail to offend against human-
ity, and would afford the most dangerous examples in a
free country. It was a barbarous law of the Romans
which subjected the person of the debtor to the absolute
power and will of the angry creditor. The enormous
abuses to which it gave rise produced its repeal among a
people by no means distinguished, at that period, for the
humanity of their character.

165

Captivity, which has, in all ages, and in all countries,
except among the modern nations of Europe, been the
most universal cause of slavery, is the most unjust title
of all to the servile subjection of the human species. It
is cruel to avenge on individuals the injuries of their
nation, or rather of its government. In civilized warfare
generous foes will inflict no other evils on an enemy than
such as they conceive to be necessary to bring the public
hostilities to a just and successful termination. It is
even good policy to treat prisoners with the greatest
lenity which is consistent with their safe-keeping. An
enemy will fight with less obstinacy against a humane
nation. And captives, when permitted to labor for hire
in their respective arts, or in the cultivation of the
ground, may supply, in some measure, the deficiency of
hands created by enlistments in the army. But to reduce
them to slavery is contrary both to justice and humanity.
Yet captivity in war was almost the sole ground of that
extensive slavery which disgraced the policy of the
Greeks and Romans, and of the barbarous rights exer-
cised over their slaves. It was a principle with them
that the conqueror had always the cruel right of putting
an enemy to death; whence they concluded, with stronger
reason, that he possessed the milder right of reducing
him to slavery. The principle is false, and the con-
clusion inhuman. No law of just and generous warfare

166

authorizes the victor to put to death a disarmed and un-
resisting enemy.

Still more iniquitous is that barbarous policy which
excites wars among the ignorant and savage tribes of
Africa, with the view of purchasing for slaves the
wretched captives. Indeed the whole of the African
trade for slaves, in its principles, in its conduct, in the
miseries it has introduced into an extensive region al-
ready too miserable; and in the-cruel mode in which
these unhappy wretches, after being torn from their
country, are pinioned down in the holds of the vessels
which convey them to the remotest parts of the earth,
to be sold like brutes to perpetual bondage, is among the
most atrocious inroads upon justice and humanity which
have ever been practised in any age, or by any nation.
The pretences which are made to justify it are as im-
pudent, as the traffic is inhuman — that a civilized peo-
ple have a right to compel such ignorant savages to labor
for their convenience and pleasure*-— that a people pos-
sessing the knowledge of the true religion may lawfully
seize such gross and stupid idolaters, and transport them

* Such were the imperfect ideas of morality which pre-
vailed among the most enlightened nations of antiquity, that
Aristotle maintained that a civilized fieojile has a natural right
to make war ujion barbarians, and, consequently, to reduce
them to slavery.

167

to a country where they may be better instructed;*
when, God knows, even this hypocritical pretence never
enters into the views either of the slave-merchant, or
the purchaser. — But a more plausible palliative for the
practice is the idea that many of these unhappy men
were slaves in their native country; and that all must
have been more miserable at home, half-famished amidst
their burning and barren sands, and subjected to a dark
and bloody despotism, than they can be in a mild and
plentiful region, among a people of polished manners.
This is making the prejudices of our self-love the judge
of their happiness, while at the same time, our own in-
terest is the advocate. — There is no country, however
severe the climate, and however barren the soil, from
which a native is not unhappy to be exiled. The ideas, the
habits, the pleasures of men, are all inseparably blended
with the scenes, with the society, with all the objects
which have been familiarized to them in the country
which gave them birth. A Laplander prefers his snows
and rocks to the most cultivated landscapes of France
or England. An American savage perceives more de-
light in his solitary wilds, and even in the ashes of his

* This was a principle of the Romish Church in the grossest
ages of her superstition : and on the pretence of this detestable
principle, the Spaniards exterminated, or reduced to the most
abject condition of servitude, the miserable natives of Mexico
and Peru.

168

wigwam, than he would in the most splendid apartments
of a palace. — Men deceive themselves continually by
false pretences, in order to justify the slavery which is
convenient for them.

There are countries, indeed, in which the very cor-
ruption of the government has rendered slaverj' necessa-
ry ; and where it is so congenial with all the political
and civil institutions and habits of the people, that it
seems to lose the injustice of its nature. In a des-
potism, every grade of the community is already en-
slaved, and the prince himself is the slave of his slaves.
Slaves here are not relatively that degraded race of
beings which they necessarily must be in free states.
They attain a degree of consequence from their utility to
indolent and voluptuous lords, all whose affairs they are
accustomed to manage; whose interest and pleasures are
almost wholly in their power. The poorer classes of the
people, in these countries, often rush to slavery with
eagerness as their protection from worse evils. No con-
dition is so oppressed and abject among them as that of
a poor freeman in the vicinity of a rich lord. He is
liable, from the insolence of power, to the most unjust
encroachments on his rights, and the most humiliating
insults in his person. But, when he foregoes his wretch-
ed freedom, for the privilege of slavery to some wealthy

169

satrap, interest often leads his mercenary master to pro-
tect him.

In a free country, on the other hand, the poorest man
is protected by the laws ; and between a freeman and a
slave, there is such a wide distinction, that the slave, by
comparing his state with that of a citizen, a comparison
which continually meets his view, must feel his condition
to be peculiarly humiliating and degraded.

The cruel and mercenary policy of those commercial
nations in Europe who planted colonies in the new world,
gave birth to that trade in African slaves, which, on the
score of its injustice and inhumanity, merits the strongest
reprobation. Hence the origin of that extensive system
of slavery which exists in several of the United States.
— But here our enquiries must receive a new direction.
Is that slavery which was unjust in its origin, equally un-
just in its continuance ? All men condemn the barbarity
of dragging the simple Africans from their native coun-
try. But America is the country of their descendents, and
it would now be equally cruel to tear them from the soil
in which they have grown up, and to send them back to
Africa.* Servitude is undoubtedly a hard lot to the sen-

* And their general and indiscriminate emancipation, as we
shall shew in the progress of the lecture, would be attended
with many, and almost insuperable difficulties.
vol. ii. Y

170

nihilities of freemen ; but the habits and ideas of these
people being accommodated to it from their infancy, it
does not press with the same severity upon their feelings.
And hard as their lot appears to be, it cannot be denied
to be preferable in every thing, except the sense of liberty,
to what it would have been, born of the same parents in
the original country of their race. But that precious
sense of liberty, renders tolerable to the savage poverty
and wretchedness, the most barren sands, and the most
howling wilderness. To confer on our American slaves,
therefore, a privilege so dear to human nature ; and other-
wise, as far as possible, to ameliorate their condition, are
certainly objects, worthy a humane legislation. But our
generous feelings may sometimes rush too precipitately
to their end, as well as worse passions. And, in accom-
plishing this benevolent work, if it can be accomplished
at all, in those states into the constitution and manners
of which slavery is most deeply incorporated, great pre-
caution must be used not to render their emancipation a
worse evil than their servitude.' — But, in the first place,
private justice on the one hand, and on the other that
natural selfishness which infallibly regulates the councils
and decisions of the great bodies and communities of
mankind,* will oppose insuperable difficulties to its cxe-

* Individuals may Frequently be found who are capable of
rising above every selfish consideration. This is seldom the

irt

eution The citizens of those states hold a property in

slaves to a very large amount, acquired under the sanc-
tion of the laws. The laws, therefore, could not equita-
bly compel them to make a sacrifice of so great value, to
the convenience and comfort of any class of men. And
neither justice nor humanity requires that the master,
who has become the innocent possessor of that property .
should impoverish himself for the benefit of his «lave.
On the ground of compassion for this degraded race, I do
not know that the present holders are exclusively called
upon to suffer the loss which must be incurred by a gen-
eral emancipation. — One mode, indeed, has been sug-
gested, in which it is conceived that the demands of jus-
tice on the part of the master, may be reconciled with the
wishes of benevolence with regard to the slave ; and that
is, by making an equitable estimate of the value of each
slave, and of the value of his labor for a year, in conse-
quence of which, the state might bind these slaves to
their present masters, as in other eases of bound servants,
for a term of years, to be calculated from the preceding
estimates ; after which they would naturally pass to the
enjoyment of liberty. To this might be added a law de-
claring all who should be born in a servile condition after

case of men acting together in a mass. Therefore we so often
see the hardest and most cruel things done by such bodies with-
out any compunction.

172

the passing of that act, free after a certain age ; only al-
lowing sufficient time by their labor to recompence their
masters for the expense of their maintenance in child-
hood.— All that could be said of such a law would be that
it would be less unjust than one proclaiming an immediate
and universal emancipation. What free people would al-
low their legislators to dispose, in the same manner, of
any other portion of their property ? — But if it were free
from every objection on that head, great and numerous
difficulties would oppose themselves to its execution : dif-
ficulties which will not readily suggest themselves, per-
haps can hardly be conceived by men who have not, at
sometime, been familiar with the institutions of slavery,
and witnessed their effects on the habits, ideas, and whole
state of society. One difficulty only I will mention, which
a prudent policy, always attentive to the public safety
and tranquility, will naturally oppose to such a general
manumission as is here contemplated. No event can be
more dangerous to a community than the sudden intro-
duction into it of vast multitudes of persons, free in their
condition, but without property, and possessing only the
habits and vices of slavery. Theft, plunder, and violence,
would become common modes of supplying their wants,
among a people who had been used to labor only through
compulsion, and whose servile principles would take off
the shame of the basest actions. Delivered from their

former restraints, they would become idle and profligate.
Few of them willing to labor, and fewer finding regular
and constant employment, or receiving wages sufficient
to support them and their children j* they would often
seek their provision by plunder, and often by corrupting
the fidelity of the slaves. In the natural progress of events,
therefore, Ave should soon see property every where in-
vaded, public safety disturbed, and even domestic peace
and security constantly endangered.

From these, and many other causes, it will be evident
that the emancipation of the African race in the United
States, if it ever be accomplished, must necessarily be the
slow and gradual work of time ; but as it is an event ar-
dently desired by the friends of humanity and liberty, the
laws perhaps ought to attempt it. Yet in this attempt they
will certainly have a most delicate and arduous task to
perform ; to facilitate manumission, and yet guard against
the evils to which it is exposed ; to encourage the ideas
of universal liberty, and yet check the indiscreet benevo-
lence of certain owners of slaves who, either during their
life, or at their death, may be disposed to emancipate
them, as an act of extraordinary merit, without having
made provision to render that liberty useful to the slave,

* This -would necessarily be the case, as long as slavery still
subsisted ; the free would seldom be employed while the mas-
ter could be served by his slaves.

174

or safe to the public ; that is, indeed, to throw on society
a multitude of idle dependents, with a mass of servile
vices, which no citizen has a right to do, either for the
mistaken relief of his conscience, or the display of his
vanity. In a word, the laws ought, perhaps, to hold out
the hope, and the means of freedom to all, yet so as, if
possible, to admit those only to a participation of its pri-
vileges who shall have previously qualified themselves
by good moral and industrious habits, to enjoy it in such
a manner as to be beneficial to themselves, and to the
state.

For this end might not the laws favor the granting of
a certain pccuUum* to slaves, to be employed wholly for
their own benefit, which might be sufficient to produce,
in a course of years, longer or shorter according to the
industry and skill of each slave, a revenue, adequate to
the purchase of his own freedom ? In order to impose a
proper check upon the avarice of masters, a certain method
might be fixed by law, by which the price of any slave
should be determined. This sum the most rigorous mas-
ter should be obliged to accept. A benevolent master
would often forego it in consideration of the former

* By this fieculiu?n is intended a certain portion of ground
allotted to the slave for his own exclusive labor, and a reason-
able portion of time allowed him each day, or each week, to
cultivate it, and to bring into the market the product of his in-
i • v for his own benefit.

175

services rendered by his slave. It would then become a
small* but valuable fund ou which to commence a new
course of industry, and with which to animate and assist
his opening hopes. In this way liberty would be within
the reach of all who possessed health, and a proper dis-
position to labor. Those who should be too indolent to
purchase it, would not deserve it; and if it were bestowed
on them, would abuse it. This seems to be the most
probable means by which slaves can be introduced to the
possession of freedom with such good habits as shall be
at once useful to themselves, and not dangerous to the
public order and safety. On this principle the claims of
justice, and of a wise benevolence might be equally satis-
fied. None would be excluded from the reasonable hope
of liberty, but the idle and undeserving; and they, no
longer than till they should render themselves worthy to
possess it.*

* Such an institution might be the more easily carried into
effect in many of the southern states ; because, so mild is the
form of slavery there at present, that it is customary to exact
of any field slave only a definite portion of labor in the day,
called a task. This task is a small square of ground marked
out by the overseer in the morning, which is equal for each
slave, and is usually calculated according to the strength of the
weakest hand in the field. To cultivate this is all that is re-
quired in the day. The strongest hands often finish their tasks
before the middle of the afternoon. They then voluntarily help
the weaker, if they have any particular friendships. If not, the

176

One danger would probably arise from liberty obtained
even in this way. The prejudices which exist against a
union of the whites with the blacks, would render it im-
possible to amalgamate the two races. The free blacks,
retaining that habitual sense of inferiority acquired in ser-
vitude, and nourished by the supercilious contempt of the
whites, would naturally throw themselves into the society
of the slaves. Such an association would be injurious to
both. It would impair the motives which should prompt
the freed man to aspire to respectability by his property
and his virtue ; it would weaken the subordination, and
corrupt the submissive duty of the slave. — One provi-
sion alone occurs to me to prevent this evil ; and that is,
assigning a large district out of the unappropriated lands
of the United States, in which each black freed man, or
freed woman, shall receive a certain portion of land in
absolute property, together with such privileges as would
induce them to prefer a settlement in the new territory to
remaining in the vicinity of their former servitude. In
order to bring the two races nearer together, and, in a
course of time, to obliterate those wide distinctions which
are now created by diversity of complexion, and which

overseer, or the master demands no more of them till the next
morning. What an admirable opportunity, together with other
portions of time which are already allowed them, for relaxation
or amusement, to improve a pcculium !

177

might be improved by prejudice, or intrigue, to nourish
sentiments of mutual hostility, every white man who
should marry a black woman, and every white woman
who should marry a black man, and reside within the ter-
ritory, might be entitled to a double portion of land. And
the magistrates, for a considerable period, ought all to be
appointed from the white nation.

But, other regulations upon this subject, and other ad-
vantages to be derived from the institution, it is not, per-
haps, necessary to endeavor further to point out. I fear
that neither the general government, nor the governments
of the individual states, will feel themselves under any
obligation to make great sacrifices in order to deliver this
humiliated race of men from the bondage which at pre-
sent degrades them, and to raise them in time to the true
dignity of human nature, in a state of liberty, and self-
government.

It is of high public concern that slavery should be
gradually corrected, and, at length, if possible, entirely
extinguished : for wherever it is incorporated with the
institutions of a republic, it will be productive of many
moral, and political evils. And where the citizens are not
constantly occupied in the industrious pursuits of agri-
culture, or the exercise of arms, as was the case at Sparta,

and at Rome, it tends to introduce general habits of indo-
voi. ii. z

178

lenee and indulgence, the fruitful source of a thousand
other vices, which corrupt the energies of society, and
enfeeble its defensive force.

There is another view in which good policy requires
that those states, in which the number of slaves greatly
exceeds the free population, should adopt measures to di-
minish that disproporlioned excrescence so dangerous to
the political body. The time must come when these slaves
will feel their force \ and there will not be wanting among
them men of a daring and enterprising genius to rouse it
into action, to the great hazard of the public safety.
Every revolt, and even every appearance of an insurgent
and seditious spirit among the slaves, must subject them
to new severities ; and severity will multiply revolts.
Slavery is preparing at some future period, much indivi-
dual misery, and frequent and dangerous convulsions for
the republic. It is a volcano which sleeps for a time
only to burst at last upon the unsuspecting tranquility of
the country with a more terrible destruction.*

O masters ! treat your slaves, while slavery is suffered
to exist, with all the mildness of which the necessary state
of servitude admits ; attach them to you by love ; imbue

* The servile war at Rome was one of the most dangerous
which ever agitated that republic ; and we have lately seen with
horror the convulsions of St. Domingo.

179

their minds in earliest youth with the principles of good
morals ; admit freely to instruct them those teachers of
religion, of whatever denomination, who will take pains to
adapt religious ideas to their measure of understanding,
and impress them on their hearts. The more 01 religious
principle and feeling can he introduced among them, the
greater security will you have for your own safety, and
the safety of the republic.

ISO

LECTURE XXII.

OF POLITICAL PHILOSOPHY, OR THE PHILOSOPHY OF
LEGISLATION.

CONTENTS.

Of jurisprudence. — Of rights, and their divisions. — Of
property, and the different ways in which it is lawfully
acquired. Of property in land — of separate and ex-
clusive property — the benefits of this institution — the
jirinciples which govern the original distribution of
property — and its transfer — of occupancy — of labor — •
of the inviolability of properly.

HATING, hitherto, taken a survey of the constituent
principles of human nature, of the general heads of
morals, of natural theology, and of economies, I proceed
to present to you a concise view of the rights, privileges,
and duties of men in a state of civil society; together
with the principles on which civil society is constituted,
and governs its operations. Plato appears to have heen
the first who thus connected the doctrines of civil policy
with those of morals. But, since his time, the example
has heen followed hy many eminent writers ,• especially
among the philosophers of modern times. In republican
governments it is peculiarly incumbent on those who

181

conduct the liberal pursuits of youth, to introduce them
to some acquaintance with the general principles of civil
policy. Talents and knowledge ought always to he held
at the requisition of the republic ; and the more the prin-
ciples of true political science are diffused by men of
letters through the body of the state, the more favorable
prospects will be opened to her for the stability of her
government, and the wisdom of its administration. It is
not expected that, in such an elementary course of studies
as is here pursued, in which the first principles of so
many branches of knowledge are to be acquired in the
short period of two or three years, you should have it in
your power to cultivate an extensive acquaintance with
the practical doctrines either of jurisprudence, or of civil
policy. All that we can aim at, in this limited time, is to
propose to you such simple and general principles, and
open to your minds such a regular and comprehensive,
but brief view of the whole science, as will enable you
hereatter to pursue it to such extent as either your in-
clination may prompt, or your public duties may require.

This science, which may be denominated political phi-
losophy, or the philosophy of legislation, is naturally di-
vided into three parts, consisting, first, of the rules which
regulate the conduct of men towards one another in a
state of society, and the means of enforcing those rules.
Secondly-— the rules, or principles which give the form

182

to the society itself, and which direct its operations.—
And lastly, — the rules which should govern the conduct
of independent societies, or states towards one another.—
The first, compose the science of jurisprudence. — The
second, that of politics. — And the third, that of public
law, or the laiv of nature and nations.

OF JURISPRUDENCE.

The rules of conduct of man towards man in a state of
civil society must he founded on their rights, either de-
rived from nature, or resulting from the will of the so-
ciety— Jurisprudence, therefore, consists of two parts, —
of which the first ascertains and defines the rights of
men ; the second relates to the legal and authorized
means of defending those rights.

OF RIGHTS.

A right may be defined to he the just claim which any
person possesses to the free use, and full enjoyment of a
thing, which no other person can justly use, possess, or
change without his consent ; and which may be main-
tained, or defended by force, or by any other means which
may be, at once, necessary and effectual for the purpose.
— Bight is a term often used to express a property of ac-
tions, as well as a privilege belonging to persons. Thus
we say a magistrate has acted right in punishing an of-
fender : in which application it implies the conformity of

183

an action to some moral rule of conduct, or to the obliga-
tion of some duty.

Obligation is the correspondent term to right, and ex-
presses the principle, or ground of some duty to be ful-
filled towards those who have a right to claim it. When
any man is possessed of rights either natural, or acquired,
it becomes the duty of other men, or, they are under ob-
ligation, to respect them. Whence, ascertaining the
rights of mankind, whether resulting from natural law,
or from the compacts of society, is a necessary founda-
tion for prescribing to citizens the rules of their conduct
respectively to one another.

Wrong, is the violation of any right. And the law of
defence, which is intended for the security of the citizens
in the tranquil possession of the blessings of society, re-
lates to the means of preventing, — repelling, — or repair-
ing wrongs.

DIVISION OF RIGHTS.

Bights may be divided in different ways ; according to
their degree,- heir objects, — or their sources. In the
first view, i ..ey are perfect, or imperfect ; alienable, or
unalienable. In the second, they are personal or real.
And, in the third, natural, or adventitious.

Perfect rights are those which, being clear and deter-
minate, a man may employ force to obtain, or defend, ei-

18*

tker by himself, if the violence is sudden and urgent, and
redress cannot await the tardy decisions of a judicial
process, or, in ordinary cases, by the tribunals, and the
executive power of his country ; which society, for all
common and general purposes of defence, has substituted
in the room of personal force, — such are the right to life,
the right to personal safety, the right to property.

Imperfect rights respect objects to which a man has a
just claim ; but the fulfilment of them society seldom at-
tempts to enforce by any law. Rights of this degree are,
in general, strongly founded in the principles of nature,
and the dictates of religion ; but they are so indefinite in
their limits, that they can rarely be marked with suffi-
cient precision in human laws to be submitted to the de-
cision of civil tribunals. They are, therefore, left to the
laws of religion, and conscience, which alone can pre-
scribe, in their full extent, the duties resulting from
them, and add to them an eiTeetual sanction. Such are
the rights which a parent possesses to dutiful submission
from his children, and a grateful return for the pains and
affection bestowed upon them in early life ; and to provision
and protection if it should become necessary, in his old
age. Such, reciprocally, is the right of children from
their parents, to nourishment, assistance, and an educa-
tion adapted to their station in society. The poor, who are
unable to provide tor their own subsistence, have a right

185

of the same kind, by the law of charity, to necessary as-
sistance, and comfort, from those who have it in their
power to aid them. To this class, likewise, is referred
the right which a worthy candidate for any office of civil
trust, possesses to the suffrages of his fellow citizens.
These rights may exist, foro conscientice ; and, in the
general opinion, may be as clear as they are important ;
yet, wanting that precision and determinateness which is
required in the objects of all laws under a free govern-
ment, if they are withheld, compulsion can seldom be ap-
plied to enforce them. This is the meaning of imperfect
rights on the one hand, and on the other, of imperfect and
corresponding obligations ; not that they are less binding
on the conscience, or in the view of the Supreme Judge
of the universe ; but that they are not the objects of com-
pulsory enforcement at human tribunals. — Hence civil
laws embrace in their consideration, only the perfect
rights of men in society ; the laws of morality extend to
both.

Another division of rights is into alienable, and unalien-
able.— The former embrace such as by their transferable
nature can, and by their legal tenure may lawfully be
transferred to others. Such are the rights which men

hold in most kinds of property. But if the property be

#
limited by contract, or conveyance to the person occupy-
vol, ii, a a

186

ingit, or be made to depend on any personal condition to
be fulfilled by him alone, it then becomes unalienable.
—The latter consist of those rights, the possession, or ex-
ercise of which cannot, by their nature and tenure, or by
the laws of morality ought not, to be transferred to others.
Of the former kind, is the right of a magistrate in his
office, the right of opinion in religion ; of the latter is
the right of a man over his own life, the right over any
trust committed to a person in behalf of another, the rights
of a husband, or a father. Some respectable writers, with
a warm, and perhaps precipitate zeal, have ranked the
rights of civil liberty in the class of those that are un-
alienable. And, it certainly argues a degenerate spirit in
a freeman to be willing without extreme necessity, to
abandon the privileges of civil liberty ; and the treachery
of a few who have been base enough to sell their own
freedom, involving, at the same time, the honor and hap-
piness of multitudes whom they had no right to injure,
has always received, as it deserved, the deepest detesta-
tion ; yet cases may be imagined, as that of the people of
Sweden or Denmark, after they found it impossible to
reform the.evils of their aristocratic government, in which
they were justified in resigning their liberties into the
hands of their sovereign, in order to deliver themselves
from the more atrocious despotism of a multitude of petty
lords.

1S7

Rights, in the next plaee, may be divided, as their ob-
jects vary, into personal and real.

Personal rights relate to such things as constitute the
nature and well-being of persons, which, in the eye of the
civil law, are two-fold, — natural and artificial. By the
former are meant individual men ; and by the latter, cor-
porations, or bodies-politic. The personal rights of indi-
viduals respect the safety, preservation, and proper use of
their powers and faculties, either bodily or mental. The
rights of corporations respect the integrity, and preser-
vation of their members, their forms, and their laws. If
any other person, or body, possessed the prerogative of
disqualifying the individual members of such a chartered
institution, or interfering with their forms of proceeding,
or the laws established for conducting their own affairs,
it would destroy, with their existence, all the beneficial
purposes of their creation.

Real rights relate to such things as constitute the external
state of a person, the use and direction of which no other
person can justly exercise, or claim. They may be refer-
red to two principal heads, property, and power ; and are
the same with those which will, hereafter, be enumerated
under the class of adventitious rights.

Some writers add to the preceding heads, the light of
possession, when laid upon a subject not antecedently ap-

188

propriated. Butpossession implies merely a transient pro-
perty arising from actual occupancy and use, and contin-
uing no longer than that use exists. Thus in a common,
a man, by virtue of possession enjoys a certain property
in that portion of it on which he is actually pasturing his
cattle. A fisherman enjoys the right of possession over
that part of a river, or lake which he occupies with his
seine. The same kind of property barbarian and savage
tribes enjoy in those extensive and uncultivated territories
which they continually use for their subsistence by hunt-
ing, or the actual range of their flocks.

The last division of rights which we make is, accord-
ing to their sources, into the natural and adventitious, or,
those which result from the constitution of human nature,
and those Which accrue from the necessities and conven-
tions of society. Most of the natural rights of man are the
same with those which have already been mentioned un-
der the title of personal, such as a right to life, and lib-
erty ; to a free use of a man's own powers, and talents ;
to a participation of the common benefits of air and water 5
and to the entire control over the products of his own la-
bor or skill. A parent has, likewise, a natural right of
authority over his infant child. All other examples of
power, and of property, belong to the class of adventi-
tious rights. -

189

Adventitious rights are such as, not belonging origi-
nally and universally to man, from the constitution of his
nature, accrue to him only in consequence of the conven-
tions of society. They refer to whatever may be conferred
by the will of others, or may be acquired by compact
with them ; and are comprehended under the heads of
property, or the right to permanent and exclusive use and
enjoyment ; and poiver, or the right to command the obe-
dience, and control the actions of other men.

It is an object of importance in the science of jurispru-
dence to point out the means by which men may justly ac-
quire the rights either of property, or of power.

OF PROPERTY.

Since the earth, and its natural products, must have
been originally common, and all men had an equal right
to improve the soil, or to gather its fruits, for their own
benefit, it becomes amoral, and a civil question of some
interest, whence arises the right of parcelling out the
surface into separate and exclusive property ? And how
far may that right justly be extended ? — It is contended
by many respectable writers, among others, by Mr Locke.
that, as nothing can be more peculiarly a man's own than
the exertions of his own faculties, whether of ingenuity
or of labor, when these exertions are employed upon a
subject originally common, tkey equitably remove it out

190

of that primitive and unappropriated state, and constitute
a property in the individual exclusive and indefeasible.
And the property arising from this cause, is the more
entire and complete in proportion as the labor and skill
bestowed upon the subject form the greater part of its
value in its new state : which is the case of cultivated
soil, compared with natural rude and unappropriated
forest or marsh. This reasoning appears sound and con-
clusive as far as the labor and ingenuity of man is active-
ly employed, and as long as it continues to be exerted.
But as it can extend only to a very narrow compass, and
to a very short duration, it does not seem to afford a suf-
ficient foundation for the rights of property in land to the
extent in which they actually exist. We must search a
little deeper, therefore, for the right of parcelling out the
surface of the earth among separate and exclusive pro»
prietors. There can be little doubt, from the wisdom and
intelligence displayed in the general structure of the
world, and from the peculiar attributes of human nature,
that this globe was formed for the use and happiness of
man ; and was committed to the direction and control of
his reason to be disposed of in that manner which seems
to him best adapted for promoting its utility, and ren-
dering it a commodious and comfortable habitation for
the greatest numbers of the human race. This general
and obvious principle involves the right of distributing it

191

in separate property, under some form of division, as
being infinitely better adapted for these ends than its
original condition of community. For it may be received
as a certain maxim, that the worst state in which the
earth can exist, and the farthest removed from the ap-
parent design of the Author of nature, is that of a com-
mon. It prevents the improvement of the soil, the multi-
plication of mankind, and the introduction and growth of
almost all the arts which contribute to the accommoda-
tion of the life of man, and of the principles of science
which expand the sphere of his knowledge.

The right of establishing separate and exclusive pro-
perty, especially in land, must result from the utility of
the institution. It contributes a thousand fold to increase
the products of the soil in climates of moderate fertility
and temperature, and, in the same proportion, to augment
the numbers of the human species. All industry, either
in collecting and nourishing herds of useful animals, or
in cultivating the earth, must cease, when it is known
that others may enter at pleasure, and enjoy in indolence
the produce of your labors. It is only when property is
certain, and its fruits are rendered secure to the proprie-
tor, that he is encouraged, by every exertion, to improve
its value and to multiply its produce. And the multiplica-
tion of the means of living contributes to multiply life
itself. Thus the earth is made more effectually to con

192

duce to the ends of its original destination. Without the
institution of property hardly ever should we see even its
natural fruits permitted to arrive at maturity. Agreeahly
to these reflections, wherever the primitive community
of the soil, is suffered to subsist, as among the aboriginal
inhabitants of America, the population is necessarily ex-
tremely sparse, and the beasts are found to multiply infi-
nitely faster than the men.

The establishment of separate property, promotes, also,
the tranquility of society ,• and tends to the introduction
and cultivation of all the useful and ornamental arts
which contribute so greatly to the accommodation and
embellishment of human life.

From every view, therefore, which we can take of the
origin of property, and the grounds of its separate and
exclusive appropriation, it is justified equally by the evi-
dent intention of divine providence ,• and by its beneficial
influence on the order, improvement, and happiness of
human society.

OF THE INDIVIDUAL EIGHT OF PROPERTY, OR THE TITLE
OF EACH MAN TO HIS ESTATE ORIGINALLY.

Of the general right of mankind to appropriate and di-
vide the surface of the earth among them for the purpo-
ses of subsistence, there can be no doubt : but the question

193

arises, whence is derived the title of each man to his par-
ticular share in the division ? The earth, in its original
state, like the ocean, was common. Each man had a right
to use it, in order to procure from it his own subsistence ;
but natural justice required that this right should be ex-
ercised so as not to interfere with the equal rights of
others. Where every man was his own judge, and acted
on his own impulse, this would necessarily be extremely
difficult, and would afford occasion to innumerable contro-
versies concerning the limits of their respective rights of
range, and the priority of occupation of particular dis-
tricts. After the inhabitants, therefore, should have be-
come too numerous on a certain territory, to employ it
according to their primitive and common rights without
frequent and dangerous collisions, it would naturally oc-
cur to the prudent among them, as the most obvious means
of remedying these evils, to agree to throw their general
rights into a common fund to be divided among them in-
dividually, or by families, according to some principles of
convenience. This important act might have been execu-
ted by common consent, or regulated according to the will
of those who should have been vested by the general as^
sembly with supreme authority for this purpose. In either
case, that division of the land adopted by them, must have
become the connecting principle of their government, and

formed the basis of their civil constitution. The constitu-
vox. ii. b b

194

tion, therefore, or fundamental law of the nation, is the
sole foundation of the exclusive rights of property to the
citizens, in their separate bounded portions of the soil.
Imagined convenience, and the benefit of society, is com-
monly the original rule or measure which governs the
law of the division, And the precise, and definite rights
derived, in this manner, from the will of the society, or
of the sovereigu, in whom the society has vested all its
powers, are substituted in the room of those primitive and
common rights derived from nature which are only gen-
eral and indefinite. Hence the tenure of landed property
is various in different countries, accoi-ding to the ideas of
the people, or of their legislators. But, whatever the par-
tition of the soil may have originally been, it usually be-
comes greatly changed in the course of time, in conse-
quence of devises, contracts, and the infinite divisions and
transfers of property which are continually taking place
in society.

OF THE PRINCIPLES WHICH GOVERN THE DISTRIBUTION
AND TRANSFER OF PROPERTY.

In the original distribution of property there are some
principles which usually govern the opinions of mankind
besides the mere will of society, and which serve to di-
rect that will. The chief of these are prior occupation,
or labor primarily bestowed on any unappropriated sub-

195

ject. And, in the progress of society, the most common
grounds of the transfer of property are devise, gift, or bar-
gain and sale, all of which are usually considered under
the general head of contract. To these means of acquir-
ing property some writers have, perhaps incautiously,
added forfeiture ; because when an injury is committed,
the guilty person is bound to make reparation, and there*
by forfeits, or transfers to the injured what had before
been his right. But this is only substituting one species
of property in the room of another : unless we basely con-
sider personal injuries, or wounded reputation, in some
instances as subjects of barter, or sale. Forfeiture is, be-
sides, so limited in its effect that hardly can it be justly
regarded as one of the sources of property.

OF OCCr/PAXCY.

The right of occupancy can take place with regard to
such things only as before were common, and unappro-
priated, such as the air, the sea, or lands which have not
yet been parcelled out among separate owners by express,
or implied compact. In subjects of this nature, each man
has a property in that portion which he holds in actual
occupation ; and no man can, without injury, deprive him
of the free and unmolested use of it. But as it is impos-
sible for one person to occupy the whole atmosphere,
ocean, or forest, and as others possess equal rights with,

196

himself, his privilege, or title of property becomes limi-
ted by natural justice, to what he is at present employing
in actual use. But the laws of almost all governments,
fromteome considerations of public utility, have concur-
red in the general principle of extending the rights of
prior occupation beyond immediate possession and use, to
what will be convenient for the purposes of society.

The principle of convenience has likewise been ?pplied
by independent nations, sometimes by implicit agreement,
and sometimes by explicit compact, to regulate their res-
pective rights of use, or property, in seas, rivers, bays,
or certain districts of the ocean, and in newly discovered
lands ; which, without such convention, must have been
subjected to the general principle, limiting rights to ac-
tual occupancy, and possession.

OF LABOR.

Labor forms another, and still juster title to property.
By it is intended any exertion of our talents, or any effort
of industry, corporeal or mental, by which a thing is dis-
covered that was not known before, — fabricated that did
not exist before, — or receives, from some change in its
form, an augmented value. The title acquired by this
means is a necessary result of the natural right which
cxery man possesses to the use of his own faculties, and
the enjoyment of their fruits. The productions of a man's

197

ingenuity and skill are his property, which he may em-
ploy, or dispose of for his own benefit. The work of his
hands forms a title to property, if it is employed on a
subject before unappropriated, or on an appropriated sub-
ject, with the consent of the owner. But if, without such
consent, any labor he added to a subject belonging to
another, it is lost to the laborer, inasmuch as it ought
not to change the original propriety of a thing which has
not been alienated. But, if it be of such a nature that it
may be separated from the original subject, the author of
the work has a right to remove it, and hold it for his own
use. But, if no separation can be made without injury to
the subject, the original proprietor must be suffered to en-
joy the benefit of the whole. Any change in this rule can
only be made with the consent of the proprietor.

Property which does not accrue from one or the other
of the sources just mentioned, and is not the effect of de-
vise or gift, is the consequence of contract or convention,
the forms of which are generally prescribed in the laws of
society. — It will be considered in the next lecture.

All property, except that resulting from prior occupa-
tion of unappropriated subjects, may be considered as
founded in labor ; inasmuch as it is labor which gives the
principal value to all things. Property derived from con-
tract is only the exchange of one species of labor for

198

another ; and that which accrues from devise, or gift, is
but the transfer, without an equivalent, of things which
have been rendered valuable by the labor of others.

One of the first principles in the establishment of sepa-
rate and individual property, was its inviolability ; which
implies that the portion of each citizen should be sacred,
and protected by the laws from the intrusion of every
other person, without the consent of the proprietor. Yet,
in this distribution, every society reserves to itself certain
rights for the common good, which seem to limit this in-
violability ; but only to enhance the value, and increase
the security of that which remains. It retains the sove-
reign prerogative of laying out roads, of cutting canals, of
establishing ferries and bridges across rivers for the pub-
lie interest, and convenience. And in performing these
acts, it may, by its sole authority, take the necessary pro-
portion of the property of any private citizens, always,
however, making reasonable compensation for what it
shall so employ. This reservation of public right is al-
ways presumed in the distribution of the territory in pri-
vate property. And, upon the most equitable grounds,
for, as the property of individuals is rendered secure and
valuable only by the will and power of the public, the
public has an undoubted right to derive an advantage
from the protection it extends. It is usual also for the
public to assert a property in certain minerals, and medi-

199

cinal springs. On the same principle, it may claim a pro-
visional right to useful inventions, or discoveries for the
public benefit, paying to the original inventor, or discover-
er an adequate and liberal reward. For, although it be
acknowleged that he has a natural right to the full use,
and fruits of his own talents, or good fortune,' yet, it is
the power, and wealth of society which can render them
of any value to him j and it merits this acknowlegement.

Another exception to the inviolability of property may
deserve to be mentioned, although it be in itself of small
importance, from the rarity of the occasions on which
it is called into exercise. It is well known to jurists under
the head of the rights of necessity. They are such as
from the extreme urgency of their claims cannot be de-
layed, yet, from the ambiguity of their circumstances
cannot easily be designated with precision in any general
law. It is necessary therefore that they be left to each
man's reason and conscience to direct his conduct at the
moment of action ; but, as they must afterwards be judged
of at the tribunal of the public, they ought to be justified
by the palpable extremity of the case. A man may put
another, who assails his life, to death on the spot, with-
out waiting the decision of a tribunal which would come
too late for his protection. A man ready to starve with
hunger or to perish with cold, may justifiably take the
first food, clothing or shelter he can find. A house, the

200

demolition of which would stop the progress of adestruc*
live flame, may, on the same ground, be torn down. As
society was instituted for the greatest common benefit,
individual interest in such eases, must give way to a
greater good. In examples of the nature of the last, how-
ever, restitution to the particular sufferer ought, as far
as possible, to be made by the community. But this res-
titution cannot be required to extend to the full value of
the property destroyed $ only to its value estimated by a
liberal appraisement in the imminent hazard in which it
stood.

Such are the principles on which the distribution of
property has been originally made in society. Its trans-
fer, or exchange among citizens by contract, which in
the end, so greatly varies its relations, will be considered
in the following lecture.

201

LECTURE XXIII,

OF CONTRACT.

The nature of a contract, and the principles that should
govern its formation — Of the distinction of contracts
—Of testamentary devise — Of exceptions to contracts.
—The obligation of truth considered under the head of
contracts. — Of the forms necessary to authenticate con-
tracts, and render them complete in law.— .Of subscrip-
tion— of seals — of oaths — of vows, — Of the rights of
command. — Of police.

I HAVE already considered prior occupation, and per-
sonal labor, by which last is meant any exertion of our own
talents, bodily or mental, as means of acquiring property.
I come now to place before you the nature and conditions
of contracts, which are the most ample source of the ac-
quisition, transfer, and exchanges of property in society,
and the subject of the greatest portion of her civil code.
— A contract is a promise explicitly made either by
words, or by signs, calculated and designed to excite an
expectation of the performance of some service, or the
transfer of some rights. An expectation thus excited,
considering the necessity there is for this mutual confi-
dence in society, reasonably creates a reliance on its ful-

toi. ii. e c

202

filment as forming part of the expectant's estate. A frau-
dulent failure to fulfil it, therefore, is equivalent to pur-
loining such a portion of his property.

A promise, when clearly and distinctly made, although
it may not he attended with all the civil forms required
by the laws of the state, is, however, equally obligatory on
the conscience of a good man with a formal contract : but
when invested with its legal forms, it becomes a ground
of compulsory obligation. It is then converted into a spe-
cies of property; and the violation of it forms an injury
which is justly punishable by the civil magistrate.

It is of importance that, on this subject, whether we
contemplate it as moralists, or civilians, we frame precise
and equitable principles for its regulation.

1. In the first place, contracts should regard only such
things as are both possible, and lawful. — If the object of
the contract is, at the time, impossible, and the impossi-
bility be known to both parties, it is an act of madness. If
it be known to one of them only, who may derive a profit
from it, it is an act of fraud. If the impossibility arises
after the contract has been made, and not from any fault
of the parties, that agreement, indeed, is void, but the par-
ties are exempt alike from the charge of folly, and crime.
If the contract respects an object which, in its nature, is
unlawful, it is, by its very terms, void ; because virtue,

203

duty, honor, truth, are prior obligations on human nature.
If the unlawfulness was not known at the time of entering
into the contract, or if it arose afterwards, as in the en-
gagement made by Herod to the daughter of Herodias,
the knowlege of this fact immediately dissolves the obli-
gation.

2. To render a contract perfect it is necessary that
there be not only a promise on one 9ide, but acceptance on
the other. In a beneficent contract acceptance may com-
monly be presumed ; but the promise should be explicitly
made to the beneficiary, otherwise it is no more than a
simple resolution in the mind of a benefactor which can
create no expectation, and may be retracted at pleasure.
But in an onerous contract, where duties are to be per-
formed on each side, there is required a mutual promise,
and mutual acceptance.

3. A contract may be made by signs as well as by
words, if the signs are such as are calculated, and evi-
dently intended, to excite the expectation of another that
a certain service shall be performed, or a certain benefit
conferred, such as raising the hand, or using any other
appointed signal for testifying assent to the declared terms
of any obligation.

4*. A man may stipulate in his own person, or by an
agent whom he has regularly authorized to act for him in

20*

the ease. He may be bound by the act of a servant in
sucb affairs as servants are known usually to transact ;
and, especially, in such affairs as he has been known re-
peatedly to commit to the management of a particular
servant.

5. Custom, when generally received and known, may
be a ground of obligation, or constitute a contract ; al-
though, not formal and explicit, nevertheless, implied and
real. A parent, for example, sending a child to a place of
education, by that act, binds himself to comply with all
the customary regulations of the institution as far as they
immediately concern him. A great part of our conven-
tions or compacts in society rest merely on the customs
of the country.

G. As there may frequently exist some ambiguity in
the expression of instruments of writing, which are not
drawn with a particular and minute attention, to the
order and meaning of words, it is an important and ne-
cessary rule, in the interpretation of contracts, to give to
those words their most usual signification, in common
discourse ; or that signification in which it will appear,
from the hody of the instrument, and from other concur-
rent circumstances, they were intended to be used.

7. An ultimate rule upon the subject of contracts is
derived from the principle which constitutes their moral

205

obligation, which is the expectation reasonably excited
by them, or the reliance founded upon them ; whence it
results, that no contract can justly be supposed to exist,
or can be admitted in the civil laws of a country to have
any force, which is entered into with a person insane, or
with one who is under guardianship, or who, from any cir-
cumstances, cannot be supposed to have a free will of his
own, or an independent right to execute its stipulations.
In these cases, no just reliance can be supposed to be crea-
ted, no reasonable expectation raised.

OF THE DISTINCTION OF CONTRACTS.

After the general rules which have been just stated on
the subject of contracts, and their validity in law, or the
equity of conscience, I proceed briefly to point out their
several distinctions, or the heads under which they may
be respectively arranged.

Contracts taken generally, may be divided into abso-
lute or conditional, single, or reciprocal. — Conditional
contracts are such as make the execution depend upon
some condition to be performed by the person who is to
receive the benefit, — on some action of another, — onsome
service to be rendered, — or some fortuitous event which
is to take place hereafter. Absolute contracts are such
as are expressed without any such limitation on the ful-
filment of their stipulations — Reciprocal contracts imply

206

obligations and promises of services to be performed, or
rights to be transferred on each side, as in all contracts of
bargain and sale. — Single contracts, on the other hand,
which are sometimes called gratuitous, contain an obli-
gation only on one side, of some favor to be bestowed, or
some right to be transferred, which requires simply ac-
ceptance on the part of the obligee. Such is the deed of
gift for some portion of his real property, which a man
may bestow on his friend, or devote to public, or charita-
ble uses, during his life. — Testamentary devise, however,
is the principal example of this species of contract, both
on account of the frequency of its occurrence, and the
importance of the objects affected by it. — On this subject,
a question has been proposed by civilians of no small im-
portance in the philosophy of legislation ; and that is,
whether the power which a citizen enjoys of disposing of
his property by testamentary devise, according to his
pleasure, be a right resulting from the law of nature, or
purely an adventitious right derived from the will of so-
ciety. Certain it is that the right of constituting wills for
the transmission and distribution of a man's property
after his death was first introduced into Rome by the de-
eeraviral law. Tacitus says it was unknown to the Ger-
mans, and from the period of the conquest in England
this privilege was not completely enjoyed by a great part
of the freeholders of that nation till within the last three

207

centuries.— The following principle on that subject, is
universally admitted, that the personal property which
any man has acquired by his own industry, or fabricated
by his own labor and skill, may, conformably to the law
of nature, be disposed of in full property at his death, in
any way which will most gratify his domestic affections,
or friendly attachments. But, because the distribution of
the land in separate propriety, and the whole system of
real estate, is the operation only of social law, it is con-
tended by many ingenious writers that the power which
creates the property has the sole right to direct the trans-
mission of it after the demise of each occupant. The
death of the occupier, they suppose, returns the soil back
to its primitive state of community, to be re-apportioned
by the law of society. Examples of the exercise of this
power often occur in the ages of feudal aristocracy in
Europe. The same end may be accomplished by insti-
tuting a certain line of descent for landed property, inde-
pendent of the particular will of the last owner. As we
see exemplitied in the absurd rule established in England
for the succession of real estate in the ruder ages of that
kingdom ', and which can, even now, be corrected only
by regular testamentary devise, which, within a short
period, has been introduced for the remedy of this evil.*

* Such as that parents can in no case inherit even if the es-
tate should be lost for want of an heir. That the remotest rela-

208

Another and more humane example we have in the rule
of the Roman law for the distribution of the personal
property of intestates. #

Although it is true that real estate rests upon a differ-
ent footing from personal property, and is wholly the
consequeuee of the will, and the peculiar organization of
civil society, yet, according to the distribution, and spe-
cies of tenure of landed property which has heen estab-
lished in any country, I am unwilling to believe that the
testamentary control over these adventitious rights, ought
to be in any degree more restricted, or less full and ab-
solute, than over the natural rights which each man pos-
sesses to the labor of his own hands. Civil society, like
the providence of nature, should make the rights which
it confers perfect. So that, although uatural and adven-
titious rights differ in the sources from which they are
derived, there should be no difference in the powers which
they bestow. This is necessary, equally, for the happi-

tion of the male line, shall supplant the nearest of kin by the
female ; and other barbarous regulations of the same kind.

* Of personal property the Roman law assigned one third
to the widow, and two thirds to the children; if there were no
children, one half was assigned to the widow, the other half to
the nearest of kin. Where the intestate had left neither widow,
nor iineal descendants, the whole property passed to the next
in the scale of kindred, and equally to those of equal degrees,
whether by the male, or female line.

209

ness of the citizens, and the encouragement of industry,
that, after the cares, the expense, or toil they have be-
stowed in the acquisition of their property, they may he
able at last to gratify the fondest affections of their hearts
in the dispositions which they make of it. This principle
is recognized in the civil laws of our own country, in the
arrangements which they have made for the distribution
of the property of those who are either so negligent, or
so unfortunate i*, to die intestate : they have endeavored
to consult, as far as possible, the general affections of
human nature upon that subject. Notwithstanding this
general and salutary provision of law, however, most men
will have some particular wishes with regard to their af-
fairs which cannot be embraced in any common regula-
tion. For these ends, every citizen has it in his power
perfectly to provide by his own testamentary arrange-
ments.— On the question, therefore, which gave rise to
these reflections, I conclude, that all that species of pro-
perty which is stiled real estate, is the effect purely of the
conventions of society. In a state of nature it could not
exist. But, when those rights have been incorporated into
the very constitution of the republic, and identified with
the person of the proprietor, then the power of transmit-
ting them by testamentary devise, or in any other way of
transferring them under the restrictions and limitations

under which they have been originally created, is a re-
vol. ii. d d

210

suit of natural law, by which any man may transfer, ac-
cording to his own inclination, rights of which he is fully
possessed. The last will and testament of a free citizen,
therefore, forms a gratuitous contract of the highest au-
thority and importance.

Contracts may be farther subdivided, and distinguished
into contracts of sale, — contracts of hazard, such as that
useful one of insurance, or that dangerous one of gaming
— contracts of service — of commissions — of partnership-—
of lending money upon interest ; concerning all which
there are many legal provisions established, and there
have existed many moral disquisitions, which it would be
tedious, and unnecessary to detail in this period of your
studies. They are left to your future experience, and in-
tercourse with the world.

OF EXCEPTIONS TO CONTRACTS.

There are four just exceptions to the validity of con-
tracts. They are void when either fraud, or unjust force
has been employed to obtain them ; or when they respect
things unlawful to be done, or impossible in their nature
to be executed. Of the latter I have spoken already. — Of
fraud, which is any deception used by one party to sur-
prize a promise from another, we may observe that it in-
validates a contract, in the first place, because deceit is
itself an injury, and merits punishment instead of being

211

permitted to receive a benefit ; and in the next place, be.
cause there can be no just expectation raised in the party
who employs the artifice, that the other will fulfil a pro-
mise so insidiously obtained; when the imposition shall be
discovered.

Unjust force, which, in like manner, invalidates a
contract, consists in any violence, or menace employed
by a person, who is not invested with any adequate civil
authority for the purpose, to extort from another a pro-
mise of advantage. A contract obtained by such unjusti-
fiable means is void for the same reasons which invalidate
fraud. Force is an injury, and never can excite any
reasonable expectation of fulfilment, as soon as the duress
is removed.

The laws, however, may in certain cases, compel one
eitizen to enter into an equitable contract with another,
by the agency of the public magistrate, and these com-
pulsory stipulations shall notwithstanding be binding
upon the coerced party. The exception of force, does not
annul the conventions of independent nations ; for, between
them, contracts must be held to be obligatory, for the
sake of the peace of the world, although extorted by force,
or by fear ; unless the oppression be so extreme as palpa-
bly to justify resistance, in the general opinion of man-
kind, as soon as the weaker power shall have acquired
sufficient strength to break her ties.

212

OF THE OBLIGATION OF TRUTH.

Under the head of contracts it has been usual to con-
sider the obligation of truth in narration and discourse in
general, as well as in the more particular circumstance
of explicit promises. The question is introduced in this
place, on the principle which has been laid down by many
writers, that all speech implies, in its nature, an indirect
contract with those whom we address, that we will utter
nothing but truth. There is, however, no need of this
fiction to establish its obligation. It rests upon the same
foundation, with the obligation of contracts themselves ;
that is, the sentiments of human nature, — and the inter-
ests and happiness of society. No man can utter a deliberate
falsehood without some compunction of heart, some feel-
ing of shame and self-reproach. And, certainly, if men
could not rely on the veracity of each other in the common
intercourse as well as the more solemn transactions of
life, and were not even impelled to yield this confidence
by a powerful natural instinct, all social relation would
be immediately dissolved. On this double foundation the
general obligation of truth in narration seems firmly to
rest. Contracts and oaths may give it an additional sanc-
tion, but, in a virtuous mind, it needs no other authority
than the voice of nature.

Connected with this, are commonly considered two
other moral questions which are of more immediate prac-

113

tical importance — the first is, wherein the essence of a lie
consists ? And the second, whether there can arise any
occasion which may justify a departure from the truth ?
— To the first of these enquiries I answer with the greater
part of moral writers, that a lie is any departure in words
from the reality of things, made with an intention to de-
ceive.— It is any equivocation, likewise, in which a sen-
tence is intentionally so constructed that the literal and
grammatical meaning shall vary from the customary and
popular sense of the same words ; or, from that sense of
them in which it is known, and intended that they shall
be taken. — It is further, any action which, from the com-
mon relation established between actions and designs, is
calculated to mislead ; as in that villainous decoy which
has sometimes been practised by armed vessels at sea,
hanging out signals of distress to allure defenceless mer-
chant ships within their power. — Or, finally, it is any
omission of a material circums ance in a narrative, where
we profess to relate, and others have a right to be in-
formed of, the whole truth. — From these definitions it re-
sults that the essence of a lie lies in the intention to de-
ceive. Where no deception, therefore, is designed, or ex-
pected to be operated, as in parables, fables, or customa-
ry compliments, or in the common practice of a prisoner
at the bar pleading not guilty, no falsehood is ever impu-
ted.

21*

With regard to the second question, many cireumstan-
«es have been ingeniously stated, and many delicate sit-
uations imagined, in which it has been supposed to be in-
nocent, or even laudable to depart from the truth ; others
have been proposed, of certainly a very dubious aspect, to
which the wisest men have found it difficult to give a pre-
cise, and definite answer. For example, the little deceptions
often used towards the sick to support their spirits, and
assist their cures, or lies told to a madman, or a robber to
divert him from a fatal design. But those mirthful tales
of falsehood invented merely for the amusement of com-
pany, or to try their credulity, are of much more doubt-
ful morality, when employed in the most ingenious form ;
but, as they are usually practised, a man can hardly con-
descend to such artifices without degrading his character.
The custom of directing a servant to deny his master or
mistress being at home, to avoid seeing a visitor, was,
when first introduced, a palpable immorality, till custom
made it at length be understood as only a mode of ex-
pressing particular engagement. It is, however, an un-
necessary departure from the ingenuousness of truth,
which might, no less inoffensively, be simply expressed.
Cicero informs us* how Scipio Nassica ridiculed this cus-
tom which, it seems, had been introduced at Rome. Scipio,
en a certain day, paying a visit to the poet Ennius, was

* Cicero 2 de orat. n 276.

215

denied by a servant maid who had been instructed to say
he was not at home. Ennius, in his turn, went to pay his
compliments to the senator, who called out to his servant
as the poet was entering, Tell him that I am not at
home. — What! says Ennius, when I hear your voice
within there ? — Very high indeed ! replied Seipio. The
other day, I believed your maid, when she told me you
were abroad ; and now, forsooth, you won't believe me
myself.

A general rule has been laid down upon this subject by
some eminent writers, and, among others, by Dr Paley,
with a great appearance of equity ; — that, as the virtue,
or the vice of actions depends, in a great measure, upon
the utility, or the injury of their consequences, whenever
the benefit of the immediate consequence of a departure
from truth, as the rescuing of an innocent life from the
fury, or iniquity of an assassin, or robber, evidently, and
greatly exceeds the remote consequences of the example,
in such cases, but in no others, can it be justified. The
application of this rule to individual instances can hardly
be made with precision in any regulations of law. It
must be left to each man's moral feelings, and to his sense
of accountability to his Supreme Judge.

Some persons possess a constitutional and unhappy ten-
dency to an excessive indulgence of fancy in their narra-

216

tions, and others an acquired habit of exaggeration oh
every subject which is expected to excite particular in-
terest, or surprize in their hearers. Few propensities
detract more from the credit and respectability of cha-
racter ; and there are few which have been found, in ex-
perience, to be more incurable. — Most men, in the negli-
gent narratives which they make of the ordinary an-
ecdotes and histories which are constantly circulating
through society, are prone to make some addition to what
they have heard, so that in passing from one to another,
they become so magnified and distorted as often to lose all
resemblance to the truth. These negligences in narration
are frequently productive of effects so unfriendly to the
happiness of social life, especially in the circulation of
the anecdotes of slander, as to rank them among the
highest offences, not only against charity, but justice.
And every good man should lay it down as a sacred and
inviolable rule to himself, never to suffer his imagination,
his passions, or his uncharitable negligences to color, or
to add, in the smallest degree, to what he has heard from
the purest sources in the intercourse of society, and es-
pecially to those historical narratives that can, in any
way, affect injuriously the reputation of others.

Having made this digression on the obligation of truth
and the other incidental questions connected with it, I

217

return again directly to the subject of contract, and to
the means of authenticating it, and rendering it complete.

I have said before, that any signs, or expressions by
which we communicate an intention, and lead others to
depend upon its accomplishment, so that any injury or
painful disappointment would result from failing to fulfil
it, is a contract binding in conscience. But to render it
complete, certain forms are necessary in each country,
according to the prescription of its laws, for giving to the
instrument more perfect authenticity. If it is merely a
verbal contract, it is requisite that the words in which it.
is expressed be clear and precise in their meaning, and
that they be confirmed by the testimony of one, or more
competent witnesses. — If it be a written covenant it must
be authenticated by the customary signature of the con-
tracting party, or parties. Besides the signature, there is
usually required the testimony of one, two, and sometimes
of three subscribing witnesses. By the civil, or Roman law,
two witnesses at least, are required to substantiate, or
prove a contract. But by the common law of England,
which is generally received in the legal proceedings of
the United States, one witness is sufficient; except, in
some instances, wherein, by express statute, more are re-
quired. The statute of frauds, for example, requires (hat
the devise of lands should be attested by three subscrib-
ing witnesses. And, in a few cases, the precautions of the
vol. ii. e e

218

civil law are adopted by the common law ; as in the rules
concerning the distribution of the estates of intestates, — «
and in maritime causes, in which two witnesses are made
necessary. The same rule is adopted in America in those
courts which have been substituted in the room of the
spiritual courts in England.*

The law, by an ancient custom, demands, as an addi-
tional security, the seals of the contracting parties. A
seal is, generally, some sign, or symbol engraved upon
stone or metal, and impressed upon wax, or wafer, in-
tended, in some way, to designate the person, or commu-
nity by whom it is used. Before the use of writing be-
came common, they, probably, served instead of the sig-
nature of the name, as those marks at present do which
are added by persons, who cannot write, to their names
written by another.

The name was written by a clerus or clerk, that is, a
learned man, as, in those days, they were esteemed to be
who could write, and the seal was added by the contract-
ing party as his distinguishing mark. After the talent of
writing became more generally diffused among society,
and almost every man was capable of inscribing his own
name, still the seal was, by custom, continued to be
added, and was by law made indispensable.

* As in the court of the ordinary,— the orphan's court, — the
chancery, and admiralty court.

219

As seals, by the commonness of their use, among the
lowest as well as the highest classes of citizens, have lost
in a great measure, their distinguishing character, and
those appropriate emblems, such as coats of arms, or pecu-
liar devices, by which families, offices, or individuals were
designated, are but rarely employed, it has been allowed
that any impression made with any instrument, provided
it be made on wax or wafer, shall serve the purpose of a
seal. A seal, in its present form is certainly not requisite
to the validity of a contract on any principles of reason ;
it is still required however by statute in all cases of spe-
cialties, as they are called, through deference to ancient
custom, for which the law has always, and perhaps justly,
been remarkable. This annexation is now made not merely
forthe purpose of more precisely designating the person of
the contracting party, but carries in it a kind of hierog-
lyphic signification, implying, that, as those things which
are closed, finished, and bound up, are, for greater securi-
ty, usually sealed, so the persons, engaged in this contract
which is finished and closed, are hereby bound, and so-
lemnly pledged for its faithful fulfilment.

In ancient ages, oaths were much employed in the rati-
fication of contracts. They are a solemn appeal to God
for the sincerity of our purpose, involving an imprecation
of his judgments on any fraudulent failure in our agree-
ments. They were frequently accompanied with other

220

ceremonies such as festivals, and the mutual exchange of
gifts to add publicity and solemnity to the transaction ; or
with the erection of pillars, or other durable monuments
to perpetuate its memory. With these were often blend-
ed other acts of religion, as libations, sacrifices, invoca-
tions. The Greeks were accustomed to divide a lamb
destined for sacrifice, into two parts, between which the
contracting parties successively passed : whence was
derived their phrase for confirming an agreement, temnein
horlion. The Latins, on the other hand, made use of a dif-
ferent phrase, ftr ire factum, from their custom, on similar
occasions, of knocking down a victim before the altar:
from which has been borrowed that familiar expression
among us of striking a hargain.

Oaths were anciently the more necessary in confirming
contracts of all kinds, because, writing being little known ?
it became requisite, by the impressions of religion on the
heart, to supply the want of the authentic and durable
evidences afforded by letters. And the very defective
forms of jurisprudence in those rude ages required the
more efficient aids of religious fear to give authority to
the regulations of civil society. Occasions, likewise more
frequently occurred, between equal and independent par-
ties who >vere amenable to no common tribunal, of enter-
ing into mutual compacts, from the numbers of petty
princes, or heads of independent families, or clans who

221

resided in the vicinity of one another. In that state of so-
ciety in which arts and letters are advanced to a consid-
erable degree of perfection, such means of ratifying con-
tracts are less necessary, and are consequently little em-
ployed. Oaths> at present, are principally used on any
public emergency, in declarations of allegiance to the civil
authority of the state, or as pledges, on entering into of-
fices of important trust, for the faithful performance of
their duties.

A vow, which, in some respects, is analagous to an oath,
is simply a contract, or obligation under which any indi-
vidual voluntarily chuses to bring himself to God. Few
vows are required by rational religion. In making them,
a man ought to be very cautious, and deliberate, but, when
made, he ought sacredly to fulfil them. With them civil
society has no concern. They are transactions solely be-
tween God, and the individual.

Of the general rights of men in society I have now
treated, particularly of those of property, and the means
of acquiring it, by labor and by contract. I should next
consider the rights of command, either over the personal
service of individuals, or the civil obedience of men in a
constituted state of society. The former has already been
a subject of discussion under the head of economics; the
latter I shall reserve to be more particularly explained
when I come to treat of the constitution of civil govern-

222

mcnt ; and shall conclude this lecture with a few obser-
vations on the subject

OF POLICE,

which consists in the limitation and direction of men in
the use of their respective rights in society, so that the
exercise of the rights belonging to one citizen, shall not
impede or interfere with those belonging to any other.
It relates to the manner in which the arts may be prac-
tised,— to the conveniences of travelling, and passing
and re-passing along the streets and public ways, — to the
order of markets, — to the times and manner of holding
all assemblies of the people, — to the conveyance of intelli-
gence,— to the regulations for the convenient management
of all commercial business. And in this last subject, the
laws of police have their principal operation and effect.
The details of police are very multifarious, and in their
minute arrangements can be learned only by experience.

As the objects of this class of laws, or the actions to
which they refer, have no natural morality, or immorali-
ty attached to them, but become lawful or unlawful only
in consequence of legal permission, or prohibition, men
have, in general, but a slight sense of the evil of violating
them. The regulations of police, therefore, ought to be
made with great prudence and moderation ', they should be
seen manifestly to conduce to the convenience of the whole

223

body of citizens ; and the vigilance of the magistrate
should supply what is wanting to their exact and faithful
execution in the strength of the general sentiment of
right and wrong as it respects the obligation of these
laws.

224

LECTURE XXIV.

OF THE DEFENCE OF CIVIL RIGHTS.
CONTENTS.

The means of defending men's rights in society — Of pre-
venting wrongs by the general influence of education — ■
by the protection and encouragement of religion — Of the
means of repelling, or repairing wrongs ; — in a state
of nature — in a state of civil society-— Of the constitu-
tion of the civil tribunals — Of the separation of the ju-
diciary from the executive, and legislative power — Of
the independence of the judges secured by the permanency
of their appointment to office, and by the ampleness and
security of their provision'— Their appointment being
made by the executive — their removal should depend on
the legislative, in consequence only of malversation in
office established before the highest judicatory in the na-
tion— In a free government the judges should be few —
in an absolute monarchy they should be numerous — and
in a despotism the supreme judiciary power should be
united with the highest offices of religion — The purity
of the administration of justice aided by the publicity of
its proceedings — Various co-ordinate courts should ul-
timately terminate in one supreme tribunal. — Of circuit

225

courts — of juries to co-operate with the judges, thereby
uniting, in the constitution of the tribunals, the best
provision for impartiality and wisdom. — Of the power
to remove trials during the prevalence of violent party
passions.

THE second part of jurisprudence relates to the
means of defending those rights which nature, or the
laws of society, have bestowed on the citizen. They con-
sist in preventing, in repelling, or in repairing wrongs.
These ends, which are among the most important in civil
society, can be effectually accomplished only by a wise
legislation, and a prompt and faithful administration of
the laws. The prevention of crimes may generally be at-
tempted with the most favorable hopes of success by pro-
viding for the good education of the citizens,— by pro-
tecting and encouraging religion, — and by the salutary
example of the public justice.

Wrongs should be repelled or repaired by an impartial
administration of wise and just laws, — by obliging the cit-
izens to fulfil their contracts, — and by arresting medi-
tated and punishing actual crimes.

OF PREVENTING CRIMES.

For promoting the tranquility, order, and happiness of

society, no provision can be more effectual than imparting
vol. ii. vf

226

Die means of instruction to every class of the people, par-
ticularly with regard to their moral, and social duties, and
the method of transacting all their ordinary affairs with
promptness and intelligence. That degree of knowlege
which, in a free country, may be imparted, by a prudent
legislation, to the poorest orders of the citizens, contrib-
utes to exalt the moral feeling of the public, and heightens
the love of order, and abhorrence of crimes. And by an
honorable provision for cultivating the higher branches of
science, there will always be prepared a most useful class
capable of directing with wisdom and prudence the opera-
tions of government. And although they should never be
called to bear an immediate part in the active labors of
legislation, or the administration of the laws, they will
serve as so many fountains of light distributed through
society, to shed the irradiations of moral and political
truth among the people, and with them, the love of virtue
and of order. The rays, it is true, may often strike feebly
upon dull and uninstructed minds, yet will they diffuse a
general twilight, which is infintely more friendly to pub-
lic virtue, and social happiness, than the gross manners,
and rude and untamed passions which generally accompa-
ny national ignorance, and the total destitution of science.

Another, and important mean, for the prevention of
crimes in a community, consists in the protection and en-

227

oouragement given to religion. Religious knowlege tends to
civilize the mind, and religious fear often holds a power-
ful control over the violent passions of the most vicious of
mankind. To the influence of religion have all wise leg-
islators in antiquity resorted, to lay the foundations of
society most securely, and to promote its civilization. The
rites with which the people continually approached its
altars, impressed the public mind with a salutary rever-
ence for those divine powers which were believed to pre-
side over the world, and were the avengers of crimes.
The christian religion adds principle to ceremony* and
instruction to the rites of devotion, and seizes on the soul
hy the double power of religious illumination, and reli-
gious awe. As we possess, however, a public and gener-
ally acknowleged code of religious doctrine which every
man is able to interpret for himself, it is, perhaps, not
desirable that any peculiar exposition of it should be pre-
scribed by the authority of the civil government. Every
citizen should be permitted to use, and sacredly protected
in using, his own right of opinion, and in the privilege of
associating with any others of corresponding sentiments,
for offering their common devotions to the Deity. A senti-
ment of religion is deeply implanted in human nature ; and
it is justly to be expected tiiat each man will be as soli-
citous to preserve the privilege of expressing it according
to his own understanding, or the dictates of his own heart,

22S

<as the government can be to enjoin it. By trusting to in-
dividual feeling and opinion, there can be no danger that
religion, so necessary to the existence, so useful to the
ultimate improvement of civil society, should perish.
The variety of sects will even be useful by their mutual
emulation, to preserve alive that pious zeal and that vigi-
lant moral discipline over their internal manners, which
will, in the best manner, aid the public virtue in the great
mass of society. With the temporary follies of enthusi-
asm which will sometimes spring up amidst an unenlight-
ened* populace,* the government has no concern. They
turn the mind to religious reflection, and, if not intempe-
rate ly opposed, they always subside, in time, into some
more sober and useful form of religion connected with
regular morals. The encouragement, therefore, which
good policy requires the civil government to extend to this
subject, is to protect every man in the sacred rights of re-
ligious opinion, and every denomination in the forms of its
own worship, and its internal discipline over its own mem-
bers. In this liberal indulgence to all sects, the state re-
quires no other guard for its tranquility, against any tu-
multuary efforts of enthusiasm, than effectual prevention of
individual zeal from restraining, or interfering with the
civil privileges of their fellow-citizens.

220
OF REPELLING, AND REPAIRING WRONGS.

Having considered the general means of preventing
crimes, and introducing peace and order into society, as
far as it may be expected in this imperfect state of human
nature ,• permit me next to observe, that the object of its
laws, when crimes, or wrongs do actually exist, embraces
the means of repelling, or repairing them.

"When men are unconnected with one another by any
civil or political tie, a condition which is usually denomi-
nated a state of nature, they may, with their own hands,
repel or punish the wrongs offered, or inflicted, by the in-
justice of others. But, in a regular state of civil society,
individuals have given up the right of avenging them-
selves to the power of the magistrate, and to the tribu-
nals established for that purpose ; except only, in those
cases in which it is impossible, from the suddenness and
emergency of the ease, to interpose the aid of the civil
power to prevent an injury; or where the relief afforded
by the law is so palpably and totally inadequate to the
wrong that is likely to be endured, that all the world will
justify the act — then a man is permitted to defend himself.

On this branch of jurisprudence, therefore, which res-
pects the defence of the rights of the citizen, we are to at-
tend chiefly to the constitution of the tribunals for the ad-
ministration of the laws,— to the principles by which.

230

those tribunals should govern themselves in pronouncing
their decrees, — to the evidence of crimes, — the design, the
proportion, and the nature of punishments.

Or THE CONSTITUTION OF THE TRIBUNALS.

The first maxim in the constitution of the tribunals is,
that the judiciary power should be separated in its exer-
cise, from the executive, and legislative, as far as the ne-
eessary union, and harmony of movement in all the de-
partments of government will permit. The union of all
these functions in an individual ruler, or in a single body
of men, necessarily constitutes a despotism ; which is com-
monly the more violent in its operations in proportion as
the numbers of that body are increased, a principle which
we have seen terribly exemplified in the late national as-
sembly of France. The union of the judiciary power with
either of the others, produces a formidable approach to
tyranny. Connected with the executive, it would afford
a dangerous opportunity to a capricious or designing chief
magistrate to exercise an arbitrary dominion, and to in-
crease his powers in the state to a dangerous magnitude,
by forming unjust and cruel decisions against all who
Avere opposed to his views, or obnoxious to his friends.
A rigorous execution, immediately following an arbitrary
decree, would leave to the sufferer no hope, or means of
redress. But however contrary to all sound principles of
legislation such a junction would be, the union of the ju-

231

diciary functions with the legislative would he still more
unfavorable to the administration of justice, aud the se-
curity of the citizen. There would be no uniformity in
the law, and, therefore, no clear and permanent rule of
conduct for the people ; because every decree in judgment
w ould be equivalent to a new law, or, if it were necessa-
ry to give more formality to the precedent, it would be
only requisite to sanction it hy a law. The public code
would be continually changing with the various cases
which should come for their determination, before the
judges who would also be the legislators. It could hardly
be expected of human nature that they should not along
with their decrees often mix their own prejudices, and
passions. Having all powers, they would be under no con-
trol. Legal decisions, would, in many cases, be unavoidably
affected by the partialities of the judges ,* and would too
often, suffer a sinister influence from the predominant
factious which should, at any time, exist in the state. A
door would thus be opened to endless litigation, and to the
most iniquitous perversions of equity — and the people
would learn to fear, not the impartial and inflexible ma-
jesty of the laws, but the prepossessions, the caprice, or
venality of the judge.

But when that distinction, which political wisdom has
pointed out, between the respective departments, is faith-
fully preserved, and the legislature enacts the law, which

232

judicial skill interprets, and applies to its proper object,
there is infinitely greater probability, that the application
will be made with impartiality and justice. The law
must then be framed under the view of general circum-
stances, and not under the bias of particular preposses-
sions, or the party attachments of the moment. The gen-
eral principles of equity must prevail in the law, as far
as they are understood by the legislators, when it is
framed without any reference to the peculiar interests of
individuals ; and the same reason must remove from the
interpretation of it all the biasses of enmity, or friend-
ship. For the judges being amenable to public opinion,
and to the legislature, who will naturally be tenacious of
the right exposition of their own decrees, must interpret
it strictly according to its letter. As they have no power
to frame, they have no privilege to modify the law. This
restriction is a necessary result of the separation of the
judicial from the legislative power. And although it is
true that the rigorous confinement of the judge to the lite-
ral exposition of the law must be productive of individu-
al cases of hardship, inasmuch as it is beyond the powers
of human sagacity to frame rules, on general principles,
which can embrace with precision, the perfect equity of
every Iiligated question; yet suffering this individual hard-
ship is preferable to investing the judge with the preroga-
tive of bending the law, even to the most consummate ideas

2r» rt
OO

of justice which Mould he constituting him legislator as well
as judge. When the law is fixed, the citizens may, at
least, understand their duty, and conform themselves to
its prescriptions. Having a known, and uniform rule he-
fore them, they have it in their power accordingly to reg-
ulate their conduct, and take care of their own interests.
No citizen will have reason to fear the tyranny of office,
or the injustice of passion. The same protection, and de-
fence is equally extended to all.

Another political principle of the highest importance
in the constitution of the civil tribunals of a free state is,
that, not only should the actual exercise of the judicial
functions be distinct from those of the executive, and leg-
islative, but, that all temptation to an undue subserviency
to the one, or the other, maybe removed from the judges,
provision should be made in the constitution, as far as
possible, for their complete independence upon both.
Being appointed to be the incorruptible interpreters of the
law, it would be improper that they should be exposed to
any bias in their decisions, such as dependence on either
of those bodies would naturally tend to induce. One of
the first requisites in order to secure that unbiassed free-
dom of mind which the important duties of their depart-
ment require, will be found in their permanent tenure of

office. When a judge feels himself secure in his station,
vol. ii. g g

23i

whatever primary sentiments of gratitude, towards a
prince, or executive magistrate, for his appointment, may
influence him, he speedily perceives his mind erect, and
intent upon his own respectability in his office, which
can be acquired only by a virtuous and dignified discharge
of its functions. In a republic like ours, in which the men
who hold the executive, and legislative departments of the
state are frequently changed by the public suffrages, this
independence of mind is the more speedily attained ;
which would be greatly impaired, or totally destroyed, if
his continuance in the office of judge depended on the will
of the temporary faction in power. — As an additional pro-
vision in favor of justice, the permanency of his judicial
station should depend only on one condition j fidelity in
the execution of its duties, which, to the virtue and the
talents that a judge ought to possess, will ever place his
honors, and emoluments in perfect security.

It is a question of great importance, and of some diffi-
culty in the science of politics, to determine in what hands
the appointment of judges should be placed, so as, at the
same time, to secure competent talents in the office, and
to avoid the danger of a dependent influence. The people
are, in general, inadequate judges of the qualities which
are requisite in the administration of the laws, it would be
dangerous, therefore, to commit the filling of the judiciary
department to popular election 5 and it would, in that

235

§ase also, be subject to the worst of all influence, that of
the predominant parties, or passions, which might at any
time agitate the state. Perhaps the wisest policy in a bal-
anced government, like that of the United States, is to
make their appointment depend on the executive depart-
ment, and their removal, on the application of the rep-
resentatives of the people, grounded on evidence, before a
competent tribunal, of their malversation in office. The
judges would never feel themselves secure, if their re-
moval depended on a mere act of the legislature. There
are frequently seasons, when acts of that kind can
be pushed through such an assembly by the force of fac-
tion, or by a popular prejudice which may be artfully
raised against (be wisest and most upright men. But
when tbe charges against them, as is wisely ordained in
our ehil constitution, must be submitted to a judicial in?
vestigation before the highest tribunal of the nation,* it
is scarcely possible that an upright judge should be over-
borne by calumny, or faction ; and he may securely rest
in the consciousness of his own virtue. The judiciary
department, therefore, having equal reason, by their ap-
pointment on the one hand, and their apprehensions of
a removal from office on the other, to respect both the
executive, and legislative branches of government, they
wiU be exempted from an undue influence from either.

* The senate ot the United States.

236

Virtue and conscious integrity will be the shield of their
independence, and of that freedom, and tranquility of
mind, so indispensable in their arduous station.

To render the independence of the judiciary complete,
it is requisite that their stipendiary provision be as inde-
pendent, and permanent as their official existence. It is
observed by a very good writer, that a power over a
meat's subsistence amounts to a power over his will. If
that department, therefore, were to receive its provision
only by occasional grants from the legislature, who pre-
side over all the fiscal concerns of the nation, which
might consequently be varied according to favor or pre-
judice, it would create a dependence which might often
prove unfavorable to the interests of public justice. The
constitution of the United States, aware of this danger,
lias with equal wisdom and justice provided, that the
judges shall, at stated times, receive for their services a
compensation which shall not he diminished during their
continuance in office. The variation in the value of
money, or, sometimes, in the general habits of living, may
occasionally indicate the necessity of an augmentation in
their compensation ; but, at no time, shall their just ex-
pectation, at entering into their office, be disappointed by
any diminution which might create a sense of dependence.

It is equally necessary, with the same view, that Ae
administration of justice be rendered respectable by the

237

ampleness of its provision ; that no suspicion may exist ot
corruption ; that men of the highest talents may he in-
vited to the hench ofjusticej and the tribunal of the laws
be invested at once with the majesty of wisdom, and the
sacredness of unsuspected integrity. A small tax this,
which the public pays for the preservation of the rights
of the citizens, the purity of the fountains of justice, and
the tranquil and secure state of property, and industry.

Another political maxim which has been established
by experience, as well as by reason, is, that, in a free
government, the members which compose the supreme
judiciary body of the state ought not to consist of a large
number. Numerous bodies are seldom capable of the
slow and patient investigations which liberty demands.
They are liable, besides, to be influenced by the popular
passions which may, at any time, agitate the public mind.
And there is undoubtedly a defect in the constitution of
the department for the administration of justice, in which
the responsibility of the judge ought to be of the highest
grade, when this salutary check on human frailty is
greatly lessened by dividing that responsibility among
large numbers. This maxim, so useful and necessary in
governments in which the highest degree of liberty exists,
ought to be reversed in absolute monarchies which are
not tempered by a proper mixture of republican restraints.
Here the supreme depositary of the laws ought to be nu-

23S

merous. The influence of a monarch over a large assem-
bly is less than over a very small body. The ardor of
popular passions, and even some degree of faction, may
be useful in such an assembly, to prevent too great ser-
vility to power. Of this the parliament of Paris, before
the late revolution, often exhibited striking examples, in
the independence of their spirit, and their resistance to
the arbitrary views of the monarch. In a despotic gov-
ernment the head of the judiciary should always be in-
vested with the supreme offices of religion. It is necessa-
ry by the supposed divinity of his functions, to overawe
the despot himself. In such states, the Sultan, or the
Schah may trample on the liberties, and sport with the
lives of his subjects ; but it is always dangerous to touch
religion, or, with a profane hand, to insult the sacredness
of its ministers.

The purity of the administration of justice, in the next
place, is greatly assisted by the publicity of all proceed-
ings in its courts. The public eye, and the fear of public
reproach, will ever form a powerful check on any discre-
tionary latitude in the interpretation of the law which a
judge might be disposed to assume. And especially when
the eyes, and ears of all those who are conversant in the
profession, and are, probably, not less skilled in the juris-
prudence of their country than himself, are open to every
step in his progress. This will necessarily prove an im-

239

portant security fop the faithful application of the law to
its proper ends, the correction of wrongs, and an effica-
cious protection of the civil rights of the citizens.

In the judiciary system in states of considerable ex-
tent, it is generally necessary for the more convenient ad-
ministration of justice, to establish various courts of con-
current, or co-ordinate jurisdiction. In all such cases, it
is absolutely requisite, on principles of the soundest ju-
ridical policy, that there be constituted one supreme tri-
bunal to which appeals may be brought from the courts
below, if any probable cause exist of doubt, or error in
their decisions. Unless these various courts were ulti-
mately united in one head possessing a sufficient control
over their adjudications, they might establish different
rules of proceeding, and different interpretations of the
law within their respective departments $ and two causes,
similarly circumstanced, might receive opposite determi-
nations as they should come for adjudication before one
court, or another. Such collisions would unavoidably in-
troduce confusion into the jurisprudence of the country,
injurious to the rights, and the peace of the citizens. The
inconsistency, and opposition of rights and claims, wiiich
would naturally result from such a system, will be re-
strained, or corrected by the establishment of a superior,
and controling authority, always consistent with itself in
its decrees, which will, in time, produce a uniform rule

240

of decision in all the rest. A supreme court is requisite,
likewise, to confine the jurisdiction of the other, and co-
ordinate tribunals within their proper limits. That love
of power, which is so congenial to human nature, and the
confidence of each in its own superior wisdom, would
prompt the respective courts to enlarge their separate ju-
risdictions, and thus produce uncertainty in the rights and
tenure of property ; unless one supreme power he ad-
mitted which shall have authority to compose every con-
troversy.

Circuit, or itinerary courts, appointed "for different dis-
tricts of an extended state, in which the different members
of the supreme judicatory should be required respectively
to preside, would relieve many of the difficulties, or dan-
gers attending co-ordinate and independent courts, at
once, by bringing justice near to the doors of the citizens,
and saving the necessity, or temptation of expense, delay,
and uncertainty by frequent appeals. The judge, having
employed his life in the study and administration of the
laws, would naturally have acquired the confidence of the
people, and of the parties at the bar ; and being prac-
tised in all the principles and forms of the supreme court,
the universal fountain of justice to the state, the same
principles and forms would of course be introduced into
the courts of the several districts ; so that one uniform

241

system of law would pervade every part of the political
body.

The next consideration in the constitution of the tribu-
nals that should engage our attention, is the means of uni-
ting, as far as is practicable to human imperfection, a*
perfect knowlege and interpretation of the law, with the
most fair and impartial application of it to each case as it
may be varied by its attending facts and circumstances.
This union, was attempted in the Roman jurisprudence by
combining the judices along with the prtetor in the for-
mation of their courts of justice, and in that of Great-
Britain, and the United States of America, by using the
assistance of the jury along with the judge who presides
upon the bench. In the judges, or presidents of the tri-
bunals, provision is supposed to be made for the perfect
knowlege of the laws, and a profound acquaintance with the
whole science of jurisprudence. But, as they must possess
the ordinary passions, prepossessions, and foibles of men,
enjoying, as they do, a fixed official station, these foibles,
whatever they are, must be generally known, so that, if the
dispensation of justice were deposited wholly in their
hands, they Mould, almost necessarily, be exposed to the
continual solicitations of parties, and to every kind of art-
ful intrigue, or interested address ; against which it is not

easy for human nature to preserve a firm and unbiassed
vol. ii. n h

242

impartiality. The jury, who are, in some measure, as-
sessors with the judge, and are selected on the spot, and
wholly for the occasion, may reasonably be supposed to
be free from this kind of influence, and to possess that in-
difference to the cause, and parties at the bar, which will
be peculiarly favorable to the fairness of their decision ;
especially, as their verdict respects only the facts on which
the sentence of the law is founded, and to which their
judgments, uninstructed in legal science, are perfectly
competent.* Men, chosen only for the occasion, will most
probably be exempted from the influence of intrigue, and
from all the prepossessions which would often assail, and

* The jury, which enters into the constitution of ou»* civil tri-
bunals, is by its peculiar office, appointed to determine only on
matters of fact. The judges decide on all points of law. Yet a
general verdict of guilty, or not guilty, pronounced by the jury,
often involves a mixed proposition of law a.ndfact, and the jury,
of course, assumes the prerogative of pronouncing on the whole.
But they are directed as to the law by the court. Sometimes,
indeed, instigated by some headstrong member, they presume
to disregard this direction, and oppose the opinion of the judge.
In that case the court may set aside the verdict, and award a new
trial. In the history of legal proceedings in England there have
been instances in which three successive verdicts on the same
question have been rejected, and the cause submitted to a new
investigation. According to the strictness, therefore, of our ju-
diciary constitution, the facts alone, on which the decision of
guilt or innocence is founded, are to be ascertained, and de-
termined by the jury, and the law is to be pronounced by the
judge.

243

might sometimes be able to reach the integrity of theper.r
manentjudges.

Juries are attended with another advantage to the com-
munity ; that, selected immediately from the body of the
people, and possessing their sentiments and feelings, they
will naturally prove the most upright guardians of their
rights and liberties ; equally concerned to defend the in-
nocent, because they may themselves be exposed to
unjust accusation, and to punish the guilt}' for the sake
of general order. Although they are not supposed to be
learned in the law, they are capable of understanding its
rules as they are expounded from the bench, and of per-
ceiving their application to the facts before them. To
unite the highest wisdom of jurisprudence with the most
unbiassed integrity in judging, no institution has hitherto
been devised in civil society which contributes so certainly
as such a constitution of the tribunals.*

The present article I conclude with the judicious re-
mark of Dr Paley. " This admirable contrivance, unites

* A maxim, however, olthe greatest importance to be ob-
served, if there are different orders of citizens in a state, is, that
the jury should always be of the peers, or of the same rank in
society with the accused. Without a strict observance of this
condition, there would often be reason to fear the want of an im-
partial distribution of justice. The accused would consider him-
self in the hands of his enemies.

2*4

t{ the wisdom of a fixed, with the integrity of a casual
" judicature, and avoids, in a great measure, the inconve-
" nienccs of both. The j udge imparts to the jury, the ben-
fl efit of his erudition and experience ; the jury, by their
« disinterestedness, check any corrupt partialities which
<« previous application may have produced in the judge.
" If the determination Mere left to the judge, the party
" might suffer under the superior interest of his adversa-
« ry : if it were left to the uninstructed jury, his rights
" would be in still greater danger from the ignorance of
« those who were to decide upon them. The present wise
«< admixture of chance and choice in the constitution of the
" court, in which his cause is tried, guards him equally
" against the fear of injury from either of these causes."*

To one danger juries are sometimes exposed from the
natural sympathy of mankind with their sect in religion,
their party in politics, or whatever principle of union with
a particular class in society, creates a distinction between
them and their fellow-citizens. When any popular, or
party passion becomes warm and violent in a particular
district, it is often difficult to find in that place an impar-
tial jury. The prejudices for, or against individuals may
be highly unfriendly to an equal administration of justice.
In such instances, however, the danger may generally be

t Paley's Mor. and Pol. Phil. p. 379— 80— Ed. Bost. 1795.

245

obviated by a power, properly lodged, to remove the trial
ot a different county, or district of the state, in which the
same parties, and prejudices are not found to exist.

Finally, to render the constitution of the court, and the
defence of the people's rights complete, it is an important
privilege which should be permitted to every party, to
employ as counsel, in maintaining their cause, and ex-
plaining for them all the laws which have any bearing
upon it, the assistance of men, who have, by time, and
study, made themselves thoroughly acquainted with these
voluminous guards of the public liberty.

2*6

LECTURE XXV.

GENERAL PRINCIPLES BY WHICH THE TRIBUNALS OUGHT
TO BE GOVERNED IN PRONOUNCING THEIR DECREES—
AND OF CRIMINAL JURISPRUDENCE.

CONTENTS.

Hides by which the courts should he governed in interpret-
ing the Jaws, and pronouncing their decrees — of prece-
dents and law reports — of the use of analogies in ex-
plaining and applying the law — of the simplicity of the
rules of morality— -and the multiplicity of civil laws— of
tlie unanimity of the jury — of courts of equity — of crim-
inal jurisprudence — of the evidence of ci%imes — of the
design of punishment in civil society— of the propor-
tion of punishments — of the nature of punishments — of
the multiplicity of capital punishments — of the ends of
punishments — of sanguinary punishments.

HAVING already proposed several important maxims
respecting the constitution of the tribunals of justice, I
proceed now to lay down some general principles by which
these tribunals ought to be governed in pronouncing their
decrees.

2-i7

The great and comprehensive principle, indeed, which
embraces and penetrates the whole, is that, in interpreting
each law, the court should rigidly adhere to its spirit and
meaning, as far as, by its obvious expression, with other
accompanying circumstances, it can be clearly ascertain-
ed ; or, which is the same thing, as far as the will and in-
tention of the legislator in enacting it can be known. —
The following rules on this subject have been prudently
adopted in the courts of England, and America.

1. To construe the law according to the plain meaning
of the words in which it is expressed, giving to those
words their common, and received signification.

2. When the language of the law happens not to be
precise, but is of equivocal signification, then, in order to
discover the intention of the legislator, the law is to be
consulted as it stood before this act was framed, — the evil,
or defect proposed to be remedied by it is to be examined,
and such construction given to the whole, as will most
effectually reach this remedy. The title and preamble of
the law often point to its meaning, and are very properly
resorted to in order to explain its enacting clause.

3. When once a judicial determination on the meaning
and extent of a statute has taken place, it then forms a
precedent by which all future decisions on the same or
similar points will be, in a great measure, directed. When

24 S

such adjudication has heen made, although it he not on
the very law in question ', yet if it be on the meaning and
extent of the same, or similar expressions in other statutes,
it is to he regarded as a good rule to guide the courts in
their interpretation.

These principles are requisite to restrain the caprices
or partialities that may exist in the minds of the judges
towards the parties at the bar, or with respect to the
question litigated before them. They are no less requi-
site to prevent the variableness, and uncertainty which
would be introduced into the law of the land if each judge,
in pronouncing his decrees, were left to be governed
merely by his own, perhaps prejudiced, sense of what is
just and equitable, in each case which is presented for
his decision.

It is true, no human foresight can anticipate all the
cases which may arise, and come into litigation under
each particular law. The utmost sagacity of legislators,
therefore, cannot prevent their laws, in individual instan-
ces, from operating hardly under a rigid and literal in-
terpretation. Of some of these examples the hardship
might, doubtless, be alleviated, if greater latitude were
allowed the judges in expounding the law ; and they were
permitted sometimes to forsake the regular course of
precedents, and follow their own sense of equity. But

249

fixed and known laws, and an invariable rule of judging
are of more importance to the peace and order of society
than can be the equity, or hardship of many single deci-
sions. When the law, and the decrees of the tribunals are
fixed and uniform, every citizen will, of course, have it
in his power to conform his actions to them, the rule be-
ing clearly known : and, for the same reason, many un-
necessary, and disquieting litigations among the citizens
will be precluded. But, if the judges are permitted, in
any degree, to modify the established standard according
to their own apprehensions of perfect right, in particular
cases, immediately the laws become unsettled, — the jus-
tice of the country is involved in obscurity, — no limits can
be prescribed to the variableness, and the contradictory
decisions of different tribunals, — and endless litigation
will be invited from the hopes which each man will en-
tertain of being able to gain, or blind the opinion of his
judge.

In almost every law which is framed, there necessarily
arises, through the defect of the human understanding,
which cannot foresee all the infinite shapes of human ac-
tion, some ambiguity in its application to many individual
cases. This evil is attempted to be corrected in the course
of legal adjudications. When a new case occurs which is

not marked with sufficient precision in the statute, it is the
voi,. ii. i i

250

duty of the judiciary to endeavor to give it as far as it
may be done by their decree, that application which is
most congenial with its spirit and intention, and which,
combining all circumstances, will form the best and clear-
est rule of legal justice in all future and similar instances.
A point, thus determined, serves, as far as other cases,
by resemblance, or analogy, can be affected by it, to re-
move the ambiguity of the law, and to form a rule here-
after to direct the judgment of the courts. And it is a
maxim in judicial proceedings, founded on principles both
of wisdom and justice, that the rule, once established,
should be rigidly adhered to ; and especially after it has
been confirmed by repeated adjudication, unless there
should be discovered in it some manifest departure from
the letter, or the spirit of the law which it professes to
explain and enforce.

New cases, invested with different circumstances, must
frequently occur in an extended country, and amidst a
numerous population. These must be decided with the
same caution, and, when decided, become new precedents
to govern the decrees of future tribunals. Hence origi-
nate the numerous volumes of reports with which the
jurisprudence of a free country is, almost necessarily, in-
cumbered. The vast variety of these reports, with the
reasons on which the respective adjudications have been
founded, serve greatly to increase the extent and intriea-

251

cy of the law as a science ; and render it absolutely re-
quisite that the judges should be profound lawyers, and
not only deeply versed in legal principles, but extensively
acquainted with the records of reports which are the his-
tory of legal adjudications. On the same reason is ground-
ed the nesessity of having the law opened, and explained
at the bar, and the judgments which have been awarded
in cases, similar to that in actual controversy, recited, and
compared by men who have made the science generally
the study and employment of their lives.

Not unfrequently, a considerable embarrassment arises
to the court itself from the difficulty of determining un-
der what law, or precedent a particular case, which is
diverse in some material circumstance, from all former
examples, may be brought. Perhaps it cannot be precise-
ly brought under any ; and the court is obliged to have re-
course to certain principles of analogy to find a sufficient
resemblance between the present, and any former cases to
afford grounds of a consistent decision in conformity with
the general train of legal proceedings. A question may
frequently have some resemblance to others which have
already been adjudged. And, it may possess an analogy,
in various respects, to several cases which, taken in all
their circumstances, are very different from one another.
In quoting, and comparing these analagous cases consists
a great part of the contention of the bar. And, in apply-

252

ing them dexterously, a lawyer displays his ingenuity and
skill. The rule of decision to the court will be, the apt-
ness, the strength, and number of analogies on one side,
more than on the other. And its wisdom is seen in com-
paring and reconciling analogies with one another, or in
making such discriminations as will save the authority
of all the rules alledged in the cause \ or, in yielding only
to the strongest.

It is an enquiry frequently made, even by the judicious
part of society, whence this rigid adherence to prece-
dents ? — It is necessary equally, for the stability of the
law, and the tranquility of the citizens. It is absolutely
requisite, in a free country, that the discretion of judges
be restricted by positive rules which no impulses of fa-
vor, or opposition, shall dare to violate, or bend to the
purposes of private passion. And no less necessary is it
for the general peace, order, and contentment of the
country, that each member of the community should, in
every event, certainly expect the same decision in his own
case which has ever been rendered to others in similar
circumstances. By a judicious adherence to precedents,
while justice is rendered to the parties, in the individual
question before the judges, an important check is imposed
on imprudent litigation, arising out of the same, or like
subjects of controversy, in all time to come. As long as
any uncertainty exists with regard to the issue 'of con-

253

tro verted questions of right, or property, the self-love,
and pride of mankind will be ready to disturb the quiet of
society by their unfair, or malignant suits at law. This
litigious spirit is in train to be repressed, by every deci-
sion which contributes to fix immutably a new point in
the law.

It seems, to many persons, strange and unaccountable,
that, since the moral duties of mankind are few and sim-
ple, and the whole theory of justice and morality may be
embraced in a volume small, and intelligible to the most
ordinary understanding, the laws of almost all nations
should, notwithstanding, be extended into such ample
volumes, and the administration of justice be esteemed
such a difficult science, and be, intact, such a tedious la-
bor. And it has been erroneously conceived, by some im-
mature politicians, that the work, of legislation has been
artfully magnified, and the whole structure and process
of our courts of justice have been artificially complicated
and intangled for the benefit of a particular order of men.
They have, accordingly, entertained many crude projects
in their fancies, for simplifying our civil codes, and re-
forming the whole order of our judicial systems. That
some amendments, if wisely attempted, might be intro-
duced into both, is probable. But in the rage for simpli-
fying, there is great danger that justice would be render-
ed more uncertain, and the settled order of society, and,

254

the tenure of property would, in time, be miserably dis-
turbed. Besides, the true ground of objection to the mul-
tiplicity of our laws, and the tedious process of our civil
courts, is mistaken. It is not denied, that the knowledge of
the moral duties of men in a state of nature, or of civil
society, is a very simple science ,• and its details are redu-
cible within a small compass. When the actions and in-
tentions of men are distinctly known and fairly stated, a
fact which is always supposed in every theory of morals,
then the conclusions, that is, the grounds of approbation
or condemnation, are plain, explicit, and definite. But it
is impossible to apply the same simple process in the ad-
ministration of the laws of the land. Here the fact, that
is, the action which is in question before a civil tribunal,
is hardly ever distinctly know n till sought out by a long
process of enquiry, and frequently by a detail of inferen-
ces drawn from imperfect circumstances, from dubious
and contending evidence, and elicited from contrasted pro-
babilities, which must exercise the ingenuity of the bar,
the judgment and candor of the bench,' whence it arises
that the decisions of justice cannot always be clearly, and
immediately pronounced. The laws of the land, necessar-
ily aiming to reach all the oblique, and equivocal actions
of men, often obliged to bring to light those which are
most occult, and, amidst the innumerable disguises of hu-
man conduct, and intention, to search out the true mind

%55

and purpose of the action, must employ, for these ends, a
vast multiplicity of provisions, which must consequently
lay open an immense field of litigation. But after the fact,
in consequence of these previous investigations, stands
manifest in its full and perfect shape, the application of
the principles of justice are not more ohscure and uncer-
tain than are the plain rules of morality in our domestic,
and social relations. The theory of morals, when the fact
on one side, and the rule on the other, are distinctly pre-
sented to view, offers simple and obvious conclusions ; the
difficulty and uncertainty of the practical application of
the rules of justice in civil tribunals arises from the in-
volution, and complication of human actions, under the
studied arts of disguise.

But this does, by no means, express the whole reason
of the multiplicity of laws in civil society. In the infinite
relations, and connexions of men in this extended inter-
course, public expediency requires a vast number of defi-
nite rules to be fixed for the transaction of its complicated
affairs ; rules, frequently, which involve no natural mo-
rality or immorality, and are only necessary because some
rule ought to be prescribed for the general convenience.
We may take, for example, the rules of inheritance, or of
the distribution of the property, real or personal, of intes-
tates. There are many things necessary to the order and
benefit of society which are not fixed \>ith precision by

256

any natural law of justice, which must therefore be pre-
scribed by the positive rules of society : as, for instance,
that precise period in the life of man at which he shall
be competent to receive or bind his estate. There are
many questions, likewise, with regard to the rights of
property which depend on transfers, agreements, customs
that have existed in periods long antecedent to the birth
of the present proprietor. But, it would be impossible
here to enumerate the various causes which contribute to
multiply the regulations of civil society, to introduce un-
certainty, or doubt in the application of the law, or neces-
sary delays in its administration. These must be left to
your future studies, or future experience in the inter-
courses of life. But it ought particularly to be borne in
mind, that it is infinitely dangerous for projectors, igno-
rant of the principles of civil, and political society, by at-
tempting to introduce an ideal perfection into its order, to
depart too far from ancient and established usages. Des-
potism delights in the simplicity of its civil code. It gives
more scope to the discretionary authority of its judges,
who are its princes. But liberty requires a multiplicity of
laws to defend her \ and her laws are her shield and
buckler.

As a still greater security to liberty, and the equity of
legal decisions, we have seen that the jury has been added
to our tribunals as a species of co-adjutors to the bench.

257

to assist in determining the facts involved in the question,
to which the judge points out the application of the law.
An important and distinctive principle in the use of ju-
ries, which takes place in the jurisprudence of Great-
Britain, and the United States, consists in requiring a
perfect unanimity in their verdict. The propriety of this
rule, certaiuly, does not immediately appear ; especially,
as unanimity is frequently procured hy a species of com-
pulsion, confining the jury in their chamber, till, hy a
certain compromise of opinions, they are tapered down,
at length, to such a coincidence as may consent to be em-
braced in a common verdict. The principle of unanimity,
indeed, has been found, on some occasions, favorable to
lenity in criminal prosecutions ; and sometimes it has
induced a divided jury to receive an opinion from the
maturer, and better informed judgment of the bench.
But, perhaps, after all, the principle of unanimity in
these juridical verdicts, would be better exchanged for
that of some certain majority.

Because the rigid letter of the law is not always the
most favorable to exact justice, and it is incompetent to
juries to determine questions of right, it is sometimes
useful, to institute a tribunal of equity, which may cor-
rect, in some measure, the errors of the law ,* or, as Mon-
tesquieu says, interpret the law in favor of herself, who

tojl. ii. k k

258

always aims at the public good, and intends the most
perfect justice to every citizen. — To such an idea of a
court corresponded the tribunals of eentumvirs at Rome,
and the courts of chancery, and exchequer in England.

The perfect distinction between these courts, and courts
of common law, is hardly understood by the greater part
of the ordinary practitioners at the bar, and has not been
clearly explained except by a few of the most eminent
legal writers. A competent knowledge of this subject
can be acquired only by consulting the best expositors of
the English, or American law. But as these respectable
authors have stated the difference to consist chiefly in the
mode of proof permitted in the courts of equity, in the
mode of trial, and the mode of granting relief, I confess
I have not been able to see the necessity of two separate
tribunals, when the good effects of both seem to be equal-
ly attainable by investing the courts of common law, on
proper occasions, with chancery powers.*

* As far as respects the mode of proof, a court of equity may
administer a purgatory oath to the party concerned, in order to
reach such circumstances relative to a depending cause, as rest
wholly within his private knowledge. And, with regard to the
mode of trial, this court may grant a commission to take the
written testimony, on oath, of witnesses who may be in foreign
countries, or who may be too remote, or too infirm, or, from
peculiar causes, may be unable to attend at the place where the
court sits. And, finally, en the mode of granting relief, — on the

259
OF CRIMINAL JURISPRUDENCE.

In treating of the defence of the rights of the citizens,
which consists in the protection of their property, and
their personal safety, the subject which next requires
your attention, after the constitution of the tribunals of
justice, is the criminal jurisprudence of a country. This
Lead includes the prosecution of crimes, and the design,
the proportion, and the nature of the punishments by
■which they are to be restrained, or chastised. And, on
this subject it should ever be remembered, that it is not
less necessary, for the security of the citizen, that crimes
should be detected and punished, than it is requisite for
the preservation of liberty, and the general happiness,
that no man should be punished before he is convicted of
guilt ; that is, of some action that is injurious to his
fellow-citizen, and, that is clearly and definitely forbidden
by the laws. Equally inconsistent with the principles of
liberty would it be that any citizen, before conviction,
should be subjected to confinement, or restraint in his
person ; except on probable presumptions of guilt ; when
the constraint should not, in any case, proceed farther
than may be necessary to hold him to trial.

compelling the fulfilment of executory agreements, the con-
struction of securities, Etc. See Blackstone's Commentaries,
book iii. ch. 27.

260
OF THE EVIDENCE OF CRIMES.

Conviction of guilt can justly be grounded only upon
evidence. Evidence is two-fold, direct, and circumstan-
tial ; the former consisting in the attestation of a witness
to his personal knowledge of the fact ; the latter, of such
circumstances as usually accompany the action in ques-
tion, and which, happening at the times, and places, and
in the combinations in which they are said to have taken
place, strongly imply the existence of the fact.

The testimony, whether it partake of the former spe-
cies of evidence, or of the latter, ought ever to be re-
quired on the oath, or solemn affirmation of the witness,
implying an appeal to the knowledge and justice of Al-
mighty God ; because the sentiment of religion is reason-
ably presumed to confirm the sentiment of truth in man-
kind, and to afford an additional pledge to society for the
verity of the evidence.

In the ease of direct evidence, the law commonly re-
quires the attestation of, at least, two witnesses to the
same fact. If the evidence be circumstantial, it requires
this attestation to two or more successive facts belonging
to the same train of circumstances, and all bearing an
evident reference to one ultimate fact.

Two witnesses are, for the best reason, required to
substantiate the principal fact, when the question rests

261

upon direct evidence ; for, although the testimony of one
man, of known, and undoubted integrity, outweighs, in
its intrinsic value, and will outweigh, in the public opin-
ion, that of many men of suspected character ; yet, as
the law cannot estimate, with precision, the characters of
witnesses, and some general rule, which may he relied
on, is necessary to be fixed, the rule of two has been
adopted as the safest, and best. One witness may often
be liable to be corruptly practised upon ; two are not
equally subject to a sinister influence. And if their testi-
mony be perverted by any interested motives, it is difficult
to make the stories of two persons cohere, in all their
parts, in support of a falsehood. But to require a greater
number of witnesses to authenticate a fact judicially, as
was done at Athens where three were required by their
courts, would, on many occasions, impede the course of
justice, and defeat the intention of the law, which aims
at the discovery, and the salutary restraint and correction
of crimes. Although the law cannot designate the charac-
ters of witnesses, and the degree of credit which ought to
be yielded to their testimony respectively, yet will they
necessarily be taken into the estimation of the judges, and
the jury, and cannot fail to have their influence on the
ultimate sentence of the court. The nature of the thing,
and the intention of law, demand, that the court should

262

possess some discretion on this subject, especially in
favor of the accused.

There are some occult crimes that, from their nature,
ean seldom admit of proof from two, or more witnesses,
which, however, the interests of society require to be vi-
gilantly detected, and rigorously punished. AVith regard
to these crimes, the testimony of one witness, supported
by strong corroborating circumstances, may, under the
prudent guards which the law provides, become a reason-
able ground of conviction.

There are two principles in requiring evidence which
ought ever to be sacredly adhered to in the humane laws
of a civilized nation. The first is, that no man should be
compelled to give evidence against himself. A law re-
quiring such testimony would be doing violence to nature,
which is always a pernicious principle in legislation, and
is productive of many unhappy effects wherever it is prac-
tised, in civil or domestic society. Among other fatal con-
sequences, it tends to debauch morals by offering power-
ful temptations to the violation of truth. In the oaths of
evidence, therefore, administered by the court, this except
tion is always understood to be implied. — The second is,
that evidence ought never to be extorted by torture.
This barbarous and irrational method of question has ob-
tained in most rude ages, and uncivilized nations. And it

263

is but lately that it lias been disused in some of the polish-
ed countries of Europe. — Torture has, certainly, no rela-
tion to truth j but only to a man's power of enduring
pain.

On the remaining subjects under the head of jurispru-
dence, I shall content myself with very few and general
observations, as it is not the object of these lectures to
make complete jurists, but to sketch such an outline, and
present to you such comprehensive principles, as may
lead your future enquiries and be hereafter filled up
with advantage by study and experience.

OF THE DESIGN OF PUNISHMENTS IN CIVIL SOCIETY.

The most perfect idea of justice in apportioning pun-
ishment to guilt is the infliction of pains in exact propor-
tion to the moral depravity of the offender. But this
supposes a knowledge of the actions of men, and of the
dispositions and tendencies of the human heart, beyond
the sagacity and penetration of human tribunals, and is
the prerogative of that wisdom and power alone which
regulates the moral system of the universe. The penal
cedes of civil communities ought to have reference only
to the peace and order of the state. Crimes are punish-
able by them just so far as the public good is concerned.
This is the proper end of all civil penalties; and this end
indicates the proper measure of punishment for the

264

various offences which disturb the order and tranquility
of society. Taking this principle for our guide, these
pains must relate either to the reparation to be made to
the sufferer by any crime, — to the reformation of the
criminal, — or to the restraint of future crimes in the
community, by the salutary example of the public justice.
— Reparation is the object principally in the view of the
law, and reformation, or restraint, only in a secondary
degree, if at all, in decrees compelling the fulfilment of
contracts, — in damages or fines assessed for slander; —
and for injuries arising from personal violence. — The
reformation of the offender is chiefly in view, and other
ends only incidentally, in those punishments which con-
sist in solitary confinement, either with, or without the
addition of hard labor: The labor being added, or omitted
by different legislators with the same view; either to
prepare the criminal for some industrious occupation
when the period of his punishment shall expire, by the
habits of employment during his confinement; or to in- *
cline him to seek for employment, by the pain of absolute
idleness, united with the self-compunction which natur-
ally springs up in the breast of an unoccupied culprit,
during the same period. The general restraint of crimes,
and the necessity of inspiring a salutary caution and fear
in those who are inclined to commit them, is the end in

265

all capital executions, and in those penalties which con-
sist in public disgrace, and shame.

OF THE PROPORTION OF PUNISHMENTS,

The end for which the pains of the law are inflicted,
should serve, in some degree, to regulate their propor-
tion to the various offences they are destined to correct.
The severity of their pains is not always to be measured
by the actual depravity of heart indicated by the crime,
or the circumstances attending its commission, but to be
determined by other considerations immediately relative
to the public good. For example, the facility with which
certain acts injurious to the peace of society, or the pro-
perty of the citizens, may be committed, may require a
proportionably severer penalty to restrain them. There-
fore the stealing of sheep, and of horses has been punished
with greater rigor by the English law, and by the law
of several of the United States, than many simple felonies
which intrinsically cannot be regarded as less criminal
than these. For the same reason, stealing out of a shop,
is subjected to a higher penalty, than from a dwelling-
house, although the immorality of the latter, if estimated
by the hardened dispositions which lead to its perpetra-
tion, is, perhaps, greater than that of the shop-lifter. — -
The difficulty of detection is generally considered by the

law as affording ground for increasing the rigor of the
vol. ii. l I

266

penalty. But, -where injuries may generally he guarded
against hy a reasonable degree of precaution and care,
the law seldom punishes with severity. Hence violations
of trust, although justly considered among the most
culpable of human actions, are generally passed over
with comparatively light animadversion. But where a
trust must necessarily be reposed, as in a servant in your
family, and no ordinary precaution can guard you against
the injurious effects of his unfaithfulness, there the
penalty again rises in its severity.

There are certain aggravations in the commission of
crimes which are ever regarded as reasonable causes for
increasing the rigor of the law. For example, their bold,
and frequent repetition; or their being accompanied
with circumstances of cruelty, or a hardened disregard
of the moral feelings of nature. They are proofs of such
malignant depravity of heart as is highly dangerous to
the peace and safety of society, and ought to subject the
culprits to the heavier pains.

Among the aggravations of crimes we may place in the
first rank, combinations for their perpetration. These
are accompanied with so much higher alarm, and greater
danger to the public peace, than any effort of individual
outrage could be, that such combinations merit to be
punished with an exemplary justice. And, among gangs

267

of combined villains, it would be good policy in the law
to make a discrimination between the ringleaders, or
foremost actors in any criminal design, and the rest of
the band. Such discriminations will frequently con-
tribute to the more effectual detection of the most culpa-
ble, and to break the spirit of union which connects
them. It will serve at the same time, to impose some
check on the formation of similar combinations, and the
execution of their iniquitous purposes, from the difficulty
of finding those among them who will be hardy enough
to encounter so much greater risks than their com-
panions.

Crimes accompanied with terror to others, or with
riolence to their persons, and especially with danger to
life, have so much more pernicious an effect on the public
peace, and on all the most valuable ends for which men
enter into society, than simple thefts, or frauds, that they
require to be repressed by a severer hand. On this princi-
ple, burglaries perpetrated in the night are justly sub-
jected by the law to a higher penalty than the same
actions committed in the day.

Among frauds, forgeries have generally the most per-
nicious influence on society ; and among forgeries those
which affect the ordinary medium of commercial circu-
lation, suoh as bank notes, or bills of exchange, are more

268

pernicious than those which consist in falsifying bonds,
mortgages, and such specialties as are not usually trans-
ferred from hand to hand, and may, therefore, be easily
detected.

But the highest species of crimes is of those which af-
fect the life of a citizen. These have been punished cap-
itally by the laws of all nations. Some political theorists,
under a mistaken feeling of humanity, have proposed the
abolition of capital punishments from the criminal code
universally, even for the crime of murder. This false
lenity would, probably, prove much more destructive to
human life than the law which inflicts death for this
highest offence against the peace of society. For one
murderer who might be reclaimed by solitary confine-
ment, and labor, or by any other private expedient, ten
would be invited to this cruel indulgence of their malig-
nant passions, by the hope of impunity. For, to the most
depraved part of society, a punishment removed from
the public view, and, therefore, soon forgotten, and which
should be known not to affect the life of the criminal,
would be regarded as an impunity for guilt. And cer-
tainly it cannot be desirable to expend the wealth, and
energies of society in the, almost, hopeless task of re-
claiming one hardened offender, at the imminent hazard
of the lives of many valuable citizens. But, if it would
be impolitic wholly to expunge capital punishments from

269

the criminal jurisprudence of the state ; it is not less an
offence against reason and justice, to inflict death, with
the British law, on crimes of various degrees of malignity.
It appears to be doing violence to humanity, and the
common sentiments of mankind, to force crimes of the
most different grades, under one denomination, for the
sake of inflicting upon them a disproportioned punish-
ment. Thus, in the laws of England, and, in some in-
stances, in our own, which are borrowed from them, the
abused name of felony is made to involve a multitude of
crimes which have no relation to one another, but this
unhappy designation of name which serves to sweep them
all equally into the snare of death. — Many of the British
jurists vindicate, or excuse, this solecism in legislation, by
saying that all these crimes, in their highest grade, de-
serve an utter excision from the benefits of civil society,
and society has no severer penalty than death for the
most atrocious offences. If there are many degrees of
depravity indicated by different felonies, and there seems
to be an unnecessary cruelty in subjecting some of the
mildest of these to the severest sentence of the law, it is
said the constitution has provided a remedy for the most
obnoxious of these examples, by the power of reprieve
vested in the supreme executive magistrate. It is said,
by these politicians, that it is useful to the state that all
these criminals should lie under the fear of death de-

270

nouneed by the law : and, at the same time, that the chief
executive authority of the nation should have it in his
power to provide for the interests of humanity by occa-
sionally rescuing a criminal of an inferior order from too
severe a fate. — I question, however, the wisdom of the
law, or the validity of the apology.

A great desideratum in the science of jurisprudence,
which, however, has hardly ever been attempted, is a
proper scale of crimes and punishments. And he would
deserve well of his country who should introduce such an
improvement into its legislation.

OF THE NATURE OF PUNISHMENTS.

In the structure of the penal code of states, it is the
indication of a wise and prudent policy to derive its pun-
ishments as much as possible from the nature of the
crimes they are destined to correct. The proportion be-
tween the one, and the other, will, by this mean, be the
better preserved ; the justice of the punishment will be
the more obvious, both to the criminal and the public,
springing, as it is made to do, out of the nature of tlie
offence j and its effect, either as a corrective, or an ex-
ample, will be proportionably more useful.

In reference to this subject, crimes may be divided
into three principal classes, — 1, crimes against morals, —

271

2, crimes against the public tranquility, which, however,
do not directly affect the security of individuals, — 3,
and lastly, crimes which immediately violate that securi-
ty.— In this partition, I do not include offences against
religion simply ; that is, for denying its doctrines, or dis-
senting from the ritual of its worship. For, although
most nations have interfered imprudently, and often
iniquitously, with the rights of religious opinion, and
worship, they are not properly objects of civil jurisdic-
tion ; but, relating wholly to spiritual ideas, and men's
spiritual concerns, they should be left to the moral and
corrective discipline of the respective religious societies.
But it should be carefully borne in mind, that this prin-
ciple does not exempt from adequate, and severe repre-
hension, all attempts made by profligate persons, or en-
thusiastic sects, to restrain the freedom of religious
opinion, or to disturb the order of religious devotion
among any denomination of men who profess to be em-
ployed in the worship of Almighty God. Such acts are
crimes against the public tranquility, and the security of
the citizen, and, as such, they are proper subjects of civil
pains. At the same time, no pretence of religious wor-
ship shall ever be admitted as a justifiable plea to cover
any illegal, or immoral act from the penalty of the law.

Crimes against morals, restricting this definition mere-
ly to those immoralities which are not accompanied with

272

any acts of violence, or injury to others, may be punished
by disgrace, by fines, and, perhaps, in some instances, by
confinement and labor.

Crimes against public tranquility may be chastised by
imprisonment, solitude, exile, confiscation ; and by all
such correctives as are fitted to subdue, and tame restless
and turbulent spirits. — But, on this subject, it is worthy
of remark, that a great error is often committed in the
punishment of seditious and libellous writings. Writings
of this nature are generally grateful to the populace ;
and there is, commonly at least, a party in the state who
are ready to applaud them, and to receive their authors
with favor. To raise them to pillories, therefore, and to
other public situations of disgrace, is essentially defeat-
ing the end of correction. It attracts the sympathy, and
excites the attachment of their partizans : and the suffer-
ers are more gratified by the testimonies of the public
applause which surround them, than mortified by the
stigma attempted to be inflicted by the law. The laws,
and the magistrates, are both, by this means, exposed to
insult and contempt.

The penalties of crimes, in like manner, which violate
the security of the citizen in his person, or his property,
may be drawn from the nature of (he offence. They are
a kind of retaliation by which society requires damage*,

273

or injuries which have been (lone to a fellow-citizen, to
be compensated by some equivalent ; or they result from
an act of the society by which it refuses security and
protection to those who have violated the security which
the law would extend to every member of the community.

The lex talionis of the Mosaic code, appears, on many
subjects, to be such an obvious measure of equity, that it
seems wonderful that it should not have been more intro-
duced into the jurisprudence of christian nations. Some
of the pains naturally arising from this rule, might, no
doubt, be frequently commuted with advantage by con-
sent of the injured party. For example, the loss of a
member, by which a poor man had been enabled to pro-
cure his subsistence, might be commuted for an annuity,
which might secure to him, during life, a sufficient, and
liberal provision.

Or THE MULTIPLICITY OF CAPITAL PUNISHMENTS.

It argues some defect of wisdom, and good policy, in a
state, when its jurisprudence is burdened with many capi-
tal offences. There is great risk that the government
become hateful to the humanity of the people. Or another
risk, perhaps not less injurious to society, is, lest the
public compassion be so much interested for the crimi-
nals that many of them shall be suffered to escape.

Every criminal that escapes the penalty of the law forms
vol. ii. Mm

274

& new encouragement to crimes. The execution of the
law, in time, becomes a lottery, in which every culprit is
prone to count the chances in his own favor. Almost
every nation, in the very early stages of her career to-
wards civilization, finds it necessary to infuse great
severity into her penal code in order to repress the rude
passions of men not yet softened by literature and the
arts ; but if the same severity be retained in her laws
after she has attained a high degree of refinement in her
sentiments and manners, it is requisite, for the sake of
humanity, that a power of reprieve be lodged in some de-
partment of the government, capable of exercising it with
a wise discretion. But perhaps the wisest policy is to
make few offences capital, and then the law inexorable.

OF THE ENDS OF FUNISHMENT.

The penalties of the law, it is said, have, besides repa*
ration to the sufferers by crimes, two ends in view, cor-
rection and example. The latter purpose alone can be
served by capital punishments. Correction is most effec-
tually promoted by solitary confinement ; especially if
combined with constant labor in some industrious profes-
sion. A vicious man can ill bear reflection on himself :
and the reflections of solitude have often been found the
most powerful means of reformation. On the other hand,
public disgrace only hardens guilt, and renders villainy
but the more incurable.

275
OF SANGUINiJIY PUNISHMENTS.

Civil society was not instituted for the purpose of ex=
ereising an atrocious vengeance on those unhappy men
who are so thoughtless, or so wicked, as to disturb its
peace. The greatness and strength of the nation should
render it superior to cruelty in the administration of its
laws, which is the property only of weakness, and the
uncertain possession of power. But in a republic, san-
guinary punishments are peculiarly dangerous. They dc
inonstrate, and they hasten the decay of the public virtue,
which is the only secure foundation of the public pros-
perity. If ever the state is obliged to resort to severity,
as may sometimes be the case in tumultuary seasons of
insurrection, and treason, as few victims as possible
should be subjected to the axe of the law ; and the re-
public should immediately return to her usual mildness
and lenity. — The extent, and severity of the proscriptions
of Sylla, though made in the name of the public good,
and directed principally against a low and turbulent fac^
tioo, hastened the ruin of Roman liberty.

276
LECTURE XXVI.

OF POLITICS.
CONTENTS.

Of the general principles of government relating to the
constitution of states.— The same form of government
not calculated for every nation — Of the different forms
of government, and the springs of their action — Of
laivs relative to the constitution of the government — Of
laws relative to despotism— to monarchy — Of the body
of nobility in a monarchy — Of the judiciary body. —
Of the nobles in an aristocracy — Of a permanent ma-
gistracy in that government invested with extraordina-
ry powers, to detect and restrain the ambitious projects
of the nobles — Jtft excellent arislocratical institution —
Of laivs relative to a democracy — Of the classification
of the citizens by Servius Tullus, and by Solon — Of a
senate as a preparatory council ; or as an integral part
of the political constitution — The question, whether a
democracy ought to be simple or representative? — If
representative, whether the popular suffrage ought to be
universal, or limited? — Of limitation to the possession
of real estate — Of regulating the times, places, and
manner of voting — Whether the votes ought to be given

oj2nl y or by ballot ?

277

THE next branch of the philosophy of legislation
which presents itself to onr consideration, comprehends
those general principles of government which relate to
the constitution of states, and to the great objects of na-
tional policy, such as taxation, population, revenue, and
commerce, constituting peculiarly the science of politics;
or of the forms, and regulations of the civil communities
of mankind.

When Solon was asked if he had given the Athenians
the best civil institutions, he replied, that he had given
them the best they were able to bear. This answer points to
a principle which lies at the foundation of political sci-
ence ; that the forms of civil government ought to be
varied according to the character and manners of the
people for whom they are designed, as well as according
to all those exterior circumstances of climate, or geo-
graphical description, such as waters, mountains, plains,
&c. which have any influence upon the occupations,
habits, and spirit of the country. It results hence, that
no single form of government is to be considered as ab-
solutely, and universally best : but the perfection of any
civil institution is wholly a relative idea to the state of
the nation to which it is adapted. A wise policy must
have relation to so many circumstances both in the inte-
rior, and external state of the people to be regulated bj

278

% that those forms Avhieh might be evidently best for one
aation, may be among the worst for another.

Yet there can be no doubt that there are some political
institutions* where they can be prudently adopted, which
are more favorable than others to equal liberty, to all the
great, or useful exertions of the human faculties, and to
the happiness of the citizen. Fortunate it is for any peo-
ple, when their previous state has prepared them to re-
ceive such forms of government as have been constructed
on principles of the soundest political reason ; or when?
like Lycurgus, the talents of a legislator have been able
to accommodate to his intended institutions the habits^
maimers, and sentiments of a whole nation.

I purpose, in the first place, to make a few observa-
tions on the principal forms of civil government which
have existed among mankind, and on the springs of ac-
tion, respectively, which govern their operations. I shall
afterwards point out some of the great objects of national
policy which its legislators ought profoundly to under-
stand, in order that they may be able, with the greatest
success, to promote the public interests entrusted to their
vigilance and wisdom.

O-F THE DIFFERENT FORMS OF GOVERNMENT, AND THE
SPRINGS OF THEIR ACTION.

The different simple forms of political institution,
which have existed in the world, out of which all others

Lave been compounded, are, as has been mentioned ii^*
former lecture, despotism, civilized monarchy, aristocra-
cy, and democracy. The principal features which dis-
criminate these forms of government from one another,
were then pointed out. I shall, at present, only add a few
remarks on the different springs by which the operations
of these governments are respectively actuated.

A great writer, whose opinions have received almost
the authority of axioms in political science, has reduced
these springs to four, fear, honor, moderation, and virtue.
In a despotism, fear of the despot, or a dismaying ap-
prehension of his power, and his passions, is the principle
of obedience in every order of the state, from his minis-
ters, down to the lowest of his people, who are all equally
his slaves.~In a monarchy, a certain love of distinction
attaches his subjects to the prince, who is the fountain of
honor ; and, by creating a universal zeal to serve him, be-
comes the actuating spirit of the government. Honor is
an ennobling principle, which often elevates the mind to
great and beneficial enterprize, and infuses into the char-
acter of a nation a high portion of energy, in the culti-
vation of the arts, as well as of war. Its sentiments are not
always coincident with the dictates of the moral faculty ;
yet are they found, in many instances, useful auxiliaries
to virtue. Honor, although supremely devoted to the ser-
vice of the prince, forms to itself laws which the prince

280

I1' ' nself cannot violate. No authority can oblige a man of
honor to commit an action which, by these laws, is held
to be dishonorable, or unworthy his rank and station. la
this view, it is a principle of political action infinitely su-
perior to the servile fear of despotic states. For, although
many of its rules are capricious, and admit of a union of
its generous qualities with vices of a particular descrip-
tion, yet they always aim at a certain pitch of morals,
and are generally favorable to a certain degree of civil
liberty in the government.

In those states in which the supreme power is lodged in
the body of the people, the principle of the government is
said, by the same great political writer, to be virtue.
This principle, as it is explained by him, is the general
preference of the public, to private interest. And, united
with this, it involves the love, and strong attachment of
the people to the democracy itself, as being the form of
government best calculated to promote the public good,
and most friendly to public morals. It is justly denomina-
ted virtue j not only because genuine public spirit is itself
one of the chief virtues, but is intimately associated with
frugality, temperance, justice, piety, respect for religion,
and all those noble qualities, most immediately related to
the great interests of the community. When these decline,
public spirit speedily follows the declension, and the na-
tional glory and happiness sink with them.

281

In aristocracies a degree of public virtue may exist ;
but it is rather the love of the aristocracy, than of the
people. A high spirit of virtue, such as has been before
described, can hardly subsist, or be of long duration in
those states in which the ranks and fortunes of men are
so extremely unequal. The nobles will be haughty, and
the people envious. Equal civil rights are not known in
such a government. The establishment of the privileges
of the people would be regarded as inconsistent with the
prerogatives of the nobility. Even the prosperity of that
humiliated body is apt to be considered as obnoxious to
the dignity, and dangerous to the security of their lords.
Such a people will seldom be heartily attached to a gov-
ernment in which they are almost annihilated ; and they
have continually before their eyes petty princes, but little
elevated above themselves, who, yet, are their absolute
masters. The highest virtue, therefore, which can be ex-
pected in this form of constitution, and which, indeed, is
necessary to render it tolerable, is mutual relaxation in
the spirit and claims on each side, in these great parties.
The people will more easily be brought into this temper
when they find a spirit of moderation prevailing among
the nobles.

It is natural for the lower class to look for this exam-
ple first among their superiors. This condescension is
vol. ii. n n

282

becoming their rank, and the refinements of their educa-
tion. Moderation, therefore, of the nobility among them-
selves, in the arrogance of their spirit ; and towards their
inferiors in the insolence of their claims, is the proper
spring of this government.

"When a legislator has conceived the idea of his consti-
tution, and of the spring by which it is to be set in mo-
tion, the whole system of his laws will, of course, be mod-
elled according to these principles.

OF LAWS RELATIVE TO THE CONSTITUTION.

The first class of laws is of those which define and
establish the form of government, and compose the co?i-
stitution of the state. In a constitution in which any se-
cure provision is made for the happiness, or the liberties
of the people, its boundaries ought to be fixed with pre-
cision, and its powers, accurately defined and distributed,
that there may be no doubt in the rulers with respect to
their authority, nor in the people with respect to their
privileges ; and that the authority, and duties of one branch
of the magistracy may not clash, or interfere with those
of another.

Or LAW S RELATIVE TO MONARCHY.

The fundamental laws of monarchy, are those which
vest the supreme authority in the prince, and establish

283

his prerogative. Thus far they agree with the principle
of a despotic state. But in order to mingle a portion of
liberty in the constitution, which is essential to a civilized
monarchy, but is excluded under a despotism, it is neces-
sary that there should exist in the state an intermediate
hody between the prince and the people, possessed of pri-
vileges and powers independent on the will of the sove-
reign. Their dignity, and the decided weight of influence,
attached to hereditary rank and wealth, will concur to
impose no inconsiderable check upon arbitrary power.
The laws, therefore, which ascertain, and fix the privi-
leges of the elass of the nobles, are, likewise, funda-
mental to this constitution.

A distinction of great importance between a despotism
and civilized monarchy is, that the latter enjoys known,
written, and fixed laws ; under the former, the will of
the sovereign is the law. A despotic state, therefore,
can hardly be said to enjoy a constitution. Its powers and
privileges are all thrown into one mass, and absorbed by
the throne.

In order that the law may be rendered fixed in a mon-
archy, and freed from the variableness and uncertainty
of the prince's humor and will, it is of high importance
there should be established a body of men, distinguished
for integrity, and knowledge, such as existed iu France

2S-i

previous to the late revolution, who may be the interpre-
ters, and, in some measure, the fountain of the laws,— »
whose office it shall be to give form to the civil code, — to
expunge from it those laws which are no longer proper,—,
to revive those which are obsolete, but useful,— to pro-
pose to the prince new ones for his adoption, which may
be conducive to the benefit of the state, and to prevent the
introduction of such as are contradictory to the establish-
ed code, or inconsistent with the ancient privileges of
any order of the monarchy. Another fundamental insti-
tution, therefore, in this form of government, is the es-
tablishment of such a depository of the laws. Happy is it
for the state, when either accident, or political wisdom,
and foresight, has been able to fix this body in such a
manner as to contribute to the freedom and security of
the citizen. The nobility are generally too indolent, and
too ignorant of law, for a trust of this nature. A body ap-
pointed by the monarch, and wholly dependent on the in-
fluence of the crown, would be still less fitted for the task.
It would be, in effect, making the will of the prince the
law. The best depository, says the author of the spirit of
laws, is a body of men taken from the midst of the people,
but advanced, by their office, to a middle rank between
the nobility and the inferior orders of the state.

A portion of liberty may be introduced into this govern-
ment by the manner of creating and modelling the ordi*

285

nary courts of justice. The fundamental institutions of
the monarchy ought to render the tribunals as independ-
ent as the nature of the government will permit. Fixed
laws, and independent judges, will create an idea of secu-
rity in the citizens for their persons, and property, and, in
so far, a sense of liberty, under the most arbitrary consti-
tution of civil policy.

Above all, it should be an invariable maxim of the state,
that this administration of the laws be not retained in
the hands of the prince, nor committed to his courtiers,
who are but the minions of his power and will. This or-
ganization of the tribunals would justly render the mon-
arch formidable to his subjects ; whereas it is of supreme
importance to his interest, and his happiness, to acquire
their confidence and love, by keeping his power out of
their view.

Why, it may be asked, do we speak of fixed laws and
fundamental institutions in a monarchy, in which the
power of the prince is supreme ? — Tt knows no eifectual
limits, it is said, but those which it is pleased to prescribe
to itself. — Be it so. — But those limits, being once estab-
lished, acquire, by time, great strength in the opinions of
the people, and in the ideas of the prince himself. And
he cannot, afterwards, easily or safely violate them, even
if lie were tyrannically inclined. Manners, customs, an-

286

eient usages, become so incorporated into the state, and
manner of thinking of a people, especially, if they have
been accustomed to enjoy any portion of liberty of thought
and action, that it is hazardous to infringe them. And
when they are supported by the opulence, and influence of
a powerful nobility, they acquire such stability, as justly
to entitle them to the name of laivs. They are not mere
forms to cover the horrors of despotic power ', but afford
real and substantial grounds on which the subject may
rest the foundation of his property, and his sense of per-
sonal security.

OF LAWS RELATIVE TO ARISTOCRACY.

In an aristocracy, the first order of laws is of those which
ascertain the body of the nobility ; thereby defining those-
who have a right to be rulers, and those who must ne-
cessarily be subjects.

It is a pernicious aristocratical institution which per-
mits all the nobles, in right of their birth, to be legisla-
tors and magistrates. The oppression of the people then
becomes extreme. On the other hand, when only a small
part of their body can, at any one period, be raised to the
senate, the selection affords a much fairer prospect that
the government will be managed with equity, and a libe-
ral regard to the natural rights of the people. For, by
this means, becoming, in their turn, subjects of the laws,

287

their own condition is, in some measure, assimilated to
that of the mass of the community. A sympathy with the
lower orders, will he created by their own experience,
which will naturally be productive of greater mildness,
and humanity in the administration of the powers of gov-
ernment. And it should be received as an axiomatic prin-
ciple in that form of civil policy, that, the greater the dis-
proportion is between the numbers of the senate, and the
whole body of the nobles, the greater will be the free-
dom, and the happiness of the people.

The institution is the best possible, when the people,
as well as the nobles, partake in the election of the senate,
and the magistrates.

The necessity of controlling the amjbition of the noble
families, and of early detecting and punishing conspiracies
against the state, which are more frequent and formida-
ble in this form of government than in most others, re-
quires a body of magistracy for the purpose to be estab-
lished by the fundamental laws of the republic. In the
exercise of this authority against powerful nobles, it is
necessary that these magistrates be invested with such
great, and discretionary powers as, in their operation,
may sometimes prove tyrannical. Without such high
and uncontrollable authority, the institution of the cen-
sors at Rome, of the ephori at Sparta, and the state in-

288

quisitors at Venice, could not effect the purpose of their
institution against such great criminals.

There may sometimes exist particular crises of public
clanger in democratic republics, in which it may be re-
quisite, for the general safety, to invest an individual cit-
izen with unlimited powers, like those conferred on the
dictators at Rome. The duration of these powers, how-
ever, being limited to a very short period, the govern-
ment soon returns to its regular, and accustomed chan-
nels. But, in aristocracies, the ambition and pride of the
great families often render their passions, enterprizes,
and factious pursuits, hereditary, and perpetual. To
check an evil attended with such continual danger to the
state, she is obliged to have recourse to a perpetual ma-
gistracy. The great {wealth, and powerful influence of
the nobility tends to make them haughty, obstinate, and
intractable. It is dangerous to become their aceuser.
And the ordinary tribunals are too weak to punish them.
This magistracy, therefore, should be able to avail itself
of secret means of information ; nor should it be fettered
in its judgments by tedious forms, and delays, but have it
in its power, by the promptness, and severity of its pun-
ishments, to apply a cure to this inherent vice of the con-
stitution.

As the great distinctions of wealth, with the almost
exclusive means of acquiring it, possessed by the scnato-

289

rian order, above the common mass of the people, are the
sources of the principal disorders of this state, it is of
importance that the laws should apply some palliatives to
the evil, which, because it is too inveterate to be directly
attacked, or entirely extirpated, may be hoped, in time,
by a silent and imperceptible progress, to relieve some
of its worst effects. Accordingly, Montesquieu remarks,
that it would be a good aristocratical institution, to make
a certain degree of wealth, acquired by a commoner,
confer nobility ; and, at the same time, to preclude the
nobles from commercial pursuits. For, when they are
permitted to become merchants, their rank, and opulence
forms an almost exclusive monopoly in their favor ; aud
a vulgar citizen, embarked in trade, must enter into a
most unequal competition with them. It is of use, by such
regulations, at once to restrain the cupidity of the higher
orders of the state, and to open to the people a prospect
of rising, by their industry, above their original rank.

But, perhaps, one of the most effectual, and, at the
same time, least invidious checks to the accumulation of
exorbitant wealth in one family, and the arrogant preten-
sions to which it is apt to give rise, is the posthumous di-
vision of great estates according to some legal and equit-
able rule, prescribed by the legislator. This may be ac-
complished, partly by the prudent regulations of the law

vol. ii. o o

290

concerning inheritances, and testamentary settlements ',
and partly by custom, over whieh the ideas of the law
possess, in time, an important influence.

OF XAWS RELATIVE TO DEMOCRACY.

In a Democracy the people frame the laws by which
the}' themselves are to be governed. In a constitution of
this kind, in which the people, in person, are to deliberate
and decide, and perform all the functions of legislation,
as was the casein most of the ancient republics, the fun-
damental institutions of the state should secure to the
body of the citizens the right of deliberating, and voting ;
and particularly define the manner in which this right
shall be exercised. The constitution should point out the
authority by which the public assemblies shall be called,
— the times and places of their convening, — the order to
be observed in them, — and the manner in which all ques-
tions shall be proposed, and issued. As this is the way in
which the people, in whom all power resides, exercise
their sovereignty, the right cannot be too strongly as-
serted, nor the mode of exercising it too clearly defined.

As large assemblies of the people, the mass of whom
are ignorant and turbulent, are liable to be inflamed by
the address and arts of factious orators, and hurried, by
momentary impulses, into measures unjust, cruel, and
contrary to their own interests, the ancient legislators

• 291

endeavored, as far as possible, to prevent these tumult ua*
ry movements, by the peculiar order introduced into the
elections. The famous division of the Roman people into
six classes, made by Servius Tullus for this purpose, is
so well known as to need no illustration. By this politi-
cal arrangement none of the citizens were deprived of
their rights of suffrage ; but they were so artificially dis-
posed, that property, and information must generally
prevail over ignorance, and poverty. The Athenians
were divided by Solon into four classes, according to their
property ; one object of which division was to limit the
eligibility of citizens to offices which required informa-
tion, or involved any important public trust ; while the
elective franchise was sacredly preserved to every citizen.
It was a principle with Solon that citizens, of the lowest
grade in the republic, may, from public fame, or their
own observation of the actions of their fellow-citizens, be
able to chuse a magistrate, although they are wholly un-
qualified to discharge the functions of the magistracy.
In consequence of this principle, he ordained that the
public magistrates should be eligible out of the three
former classes only j but judges in legal trials, an order
equivalent to our juries, might be chosen out of the last
of the four classes, comprehending that numerous body
who were destitute of real property.

292 •

In a simple democracy, in which the people decide all
things in person, a senate to digest and prepare the busi-
ness for the public assemblies is an institution of singular
utility. It often prevents the precipitancy and rashness
to which such assemblies are prone, when the introduc-
tion of business to their deliberation is left to accident, or
the caprice of individuals, and its decision to the heated
impulse of the moment. It imposes some check on the
dangerous arts of demagogues, whose success depends
upon being able to inflame the passions of the populace,
and often on taking them by surprize.

The institutions which have been just named, of the
classification of the citizens, and of a senate of previous
deliberation, are superfluous in republics where the people
do not discuss their political questions, and make their
legislative decisions in the general assembly, but by their
representatives. A representative body will usually pos-
sess more temper and wisdom, than any unpurified, popu-
lar mass. Still, however, a senate, not as a preparatory
organ, but as an integral part of the legislature, is useful,
and perhaps necessary in every wise, and well-ordered
government. A single body of legislators, especially if
it be numerous, and act without having its measures
subject to revision, is often liable to the influence of pop-
ular passions, to sudden impulses, and to factious intrigue.
A senate, as a second branch in the legislature, is ealcu-

293

lated in a great degree to prevent, or correct those evils,
not only by the superior age which the laws may require
in its members, and by the manner of its appointment,
which may be made more favorable to the selection of the
wisdom and experience of the nation, than can be done in
popular elections, but simply by the circumstance of its
being a separate body. The same violent impulse, or the
same factious influence will probably seldom operate in
an equal degree upon both assemblies at the same time.
The moderation and prudence of the one, when factions
do exist, will frequently restrain the impetuosity and
rashness of the other. The same men can hardly be sup-
posed to acquire a leading influence in both. And differ-
ent leaders, admitting that they are equally governed by
ambitious, or by mercenary views, will seldom find their
interests coincide. Mutual opposition will therefore im-
pose a powerful, and mutual restraint on all improper de-
signs ; and hardly leave them any other point of union but
the public good.

"Whether a democracy ought to be simple, or represent-
ative in its structure, w ill depend in a great measure on its
territorial extent. If it be confined to a^iugle city, ami
its environs, we may pronounce it, as a general rule, that
the government ought to be simple, and the legislative
power be vested in the general assembly of the citizens.
If it be placed in a selected body of representatives, ex-

29i

eept for the general purpose of preparing business to be
laid before the assembled citizens, the facility with which
a turbulent populace can be collected at any time, by de-
signing men to dictate their imperious will on subjects
already submitted to the discussion of the legislature, will
give to their irregular and violent meetings a decided in-
fluence over every important legislative deliberation. The
people, acting in person in such republics, would soon ab-
sorb into their own assemblies, all the powers which they
had pretended to commit to the assembly of their repre-
sentatives. Hence the little states of Greece never re-
sorted to the principle of representation, except in their
confederated capacity in the council of the amphyctions,
when the fear of some formidable neighboring power
compelled certain states to enter into a mutual league for
their common defence. For the same reason we have
seen, during the turbulent period of the revolution in
France, the national assembly of that ephemeral repub-
lic, so often controlled in its deliberations by the mob of
Paris.

It is a political question of no small importance, as the
way in which it'shall be answered, may affect the tran-
quility of the state, and the wisdom of its government, —
whether the election of the representatives, and of the of-
ficers to fill any magistracy which may be in the gift of
the people, shall be made by a universal, or limited suf-

295

frage ,• and, if limited, what shall be the qualifications of
the electors ? — Universal suffrage is always dangerous, at
least in the course of time, to the tranquility of the state,
and to the prudence of its administration. The mass of
the populace is necessarily ignorant ; and, through igno-
rance, exposed to have their opinions easily misled, and
their passions inflamed by the insidious arts, and the vio-
lent harangues of unprincipled and ambitious citizens.
The popular and fickle tides raised by these arts will
often have an undue influence over the opinions and
actions of their subservient representatives. Either the
people will chuse men who are deeply tinctured with their
own prejudices, or inflamed with their own passions ; or
the representative, who is humbly ambitious to gain their
precarious favor, and keep his place in the government,
will be disposed tamely to yield his opinion to their vio-
lent and variable impulse. The character of the repre-
sentative assembly under the influence of such electors
will be gradually deteriorated, and sink, in point of in-
formation and respectability, towards the level of their
uninformed constituents. The probability of obtaining a
wise, and judicious representation will be much increas-
ed by restricting the elective franchise by some rule of
property. The restriction established in most of the Uni-
ted States to a sum so small that the poorest laborer may
justly estimate the use of his hands for a few days, at a

296

higher rate, is, at once, an acknowledgment of the po-
litical justice of the principle, and an utter evasion of the
benefit which might be derived from it. It is obviously
throwing open the rights of suffrage to the broadest uni-
versality. The whole purpose of limiting these rights, if
it have any meaning, is to place the elective powers of the
community in the hands of those who, by their property,
have the most ample means of information, and the deep-
est interest in the public welfare : at the same time, in
order to escape the rocks of aristocracy, the qualifica-
tions to entitle a citizen to vote, ought to be made so lib-
eral as to include in the electoral class the greatest num-
bers which may be consistent with the true interests of
the state. To accomplish this end, that standard of pro-
perty should be chosen which is most visible and fixed,
and, in its nature, most intimately connects the interests
of the proprietor with those of the republic. Money alone,
or the ordinary, circulating signs of value, are so easily
transferable to any other country, and are, besides, so
much out of the view of the public, and afford such an un-
certain ratio of wealth, that they seem to be very unfitly
chosen as the electoral criterion. But laud being the basis
of the republic, from the products of which the citizens
must necessarily be supported, property in the soil seems
the best criterion of that active citizenship on which elec-
tion and representation ought to be founded. The rcqui-

0, ■>

297

sition of real property, morfever, lo enjoy the right of vo-
ting lessens that vast, and indefinite multitude which
would otherwise claim the franchise, and which, from
their numbers, would be so easily thrown into tumult,
and agitated by any dominant and popular passion. A Yery
dense, and uninformed population, which possesses a share
in the elective privilege, will, on all those occasions which
greatly agitate the public mind, as elections for the leg-
islators and governors of the country always do, contain
in itself a strong tendency to turbulence and disorder.
This tendency is much restrained by a thin population ;
or, what amounts to the same thing in effect, restricting
the number of electors, by requiring the qualification of
real property to the exercise of the franchise. Hence it
is, that the great political movements in the United States
of America have been distinguished by a coolness of tem-
per which has rarely been found, in similar circumstances,
in other countries. The sparseness of our population has
prevented that excitement to the passions which is created
in great assemblies roused into a ferment by the interests
of a nation. That moderation, which has been so much
our own boast, and the wonder of other nations, has arisen
principally from the circumstance just named, together
with its natural consequence, the general political infor-
mation of the popular mass. Time, and the multiplica-
tion of our citizen?, will produeea change, itistobe fear-
vol. ii. i'p

ed, less favorable to this peculiar boast of our country.
A selected electoral class, distinguished by a fixed proper-
ty in the soil, besides affording the opportunity of better
information in that body, and the certainty of a stronger
union of individual, with the public interest, will contain
in itself a powerful principle of tranquility and modera-
tion in all the interior movements of the state, by the
sparseness of that portion of the population which pos-
sesses an immediate and strongly exciting connexion with
the government by its elective franchises. In this res-
pect the state of Virginia possesses, at present, the best
organized system of any republic in the American con-
federacy. And it requires no uncommon political sagacity
to foresee that many of the other states will, hereafter,
regret the want of a like restrictive qualification in their
electoral body.

As the sovereignty of the people in a democratical
form of government is exercised by a vote, it should be
among the primary and fundamental laws of such a state
to regulate the times, the places, and the manner of giv-
ing in their suffrages.

On this subject, the principal question among politi-
cians has been, whether the popular vote should be taken
openly, or by ballot ? — Perhaps all offices which are in
the gift of the people, whether legislative or executive,

290

should be conferred by open vote. With them a degree
of intrigue is useful; otherwise, their public affections
are prone to become torpid, and inactive.

In the legislative body, likewise, all laws should be en-
acted by the most open and public vote, that the people
may know in what manner they are served. On the other
hand, all offices bestowed by the legislature ought to be
given by ballot. A selected assembly like this, being
supposed to be more capable, than the multitude, of
judging with candor and prudence of the merits of differ-
ent candidates for places of public trust, intrigue would
here be improper. Every legislator, ought to be most
free, and exempted from any bias, but that created by
talents, and virtue, in exercising his judgment.

300

LECTURE XXVII.

OF THE RELATION OF A GOVERNMENT TO THE SPIRIT*

AND MANNERS OF A PEOPLE OF THE CORRUPTION OF

ITS PRINCIPLE — OF FRUGALITY, &C.

CONTENTS.

Of the spirit of a people, and the relation which a govern-
ment ought to hear to it — Of the influence of laws to
effect a change in the spirit and manners of the people>—
Of the laivs of education — Of the corruption of the spirit
of a government, or the principle of the constitution —
Of the corruption of the principle of monarchy — Of the
corruption of democracy — Of frugality, and the means
of promoting it.

A VARIETY of concurring circumstances, con-
tinuing to operate upon a nation for a long time, contri-
bute to form what is called its spirit, and to give a na-
tional and distinctive character to its manners. Among
these the peculiar occupations of the people, — their pov-
erty or wealth, — the extent of the territory, — the face
and fertility of the country, — the climate, — proximity to
other nations, — preceding revolutions of government,—
prevalent ideas of morals, or religion ; in a word, what-
ever can affect their external, or internal state, have a

301

peculiar influence on the ultimate effect. Whenever a
nation has acquired fixed manners and customs, and a
distinguishing character, and spirit, the government, and
the laws ought to regard them with respect, and never at-
tempt too directly to contradict them, or too violently to
change them. Laws, otherwise the best, may become ty-
rannical ; for that tyranny is no less real which attempts
to control our opinions, or which violates our manners,
than that which affects our lives, or our property. The
efforts of legislators, and rulers to contradict the spirit of
a people have frequently been productive of so many po-
litical evils, that it is eligible to submit to some imper-
fections in the government, rather than aim at too great
theoretic perfection. It is better to bear with some partial
evils in the laws, than to hazard a convulsion by attempt-
ing to reform too much. This forms the explanation of
those declarations in the sacred seriptures in which it is
said that God permitted certain evils in the civil and po-
litical state of the Jewish nation, on account of the hard-
ness of their hearts, — that is, the inveteracy of certain
habits and customs which civil rulers can seldom attack
without encountering greater risks, or suffering greater
evils than would arise from their continuance. The same
reflection unfolds, and vindicates the meaning of Moses,
when, speaking in the name of God, he says, I have given
them statutes that were not good,— .though relatively wise,

302

as they respected the state, and progress in civility and
manners of that nation, they were not absolutely perfect.
An example of which imperfection, that finds its justifi-
cation in the same principle, is seen in the sanguinary
penal laws of that great legislator. A people who have
not made great advances in the refinements of civiliza-
tion, who are comparatively rude in their manners, and
prompt to violence, require the restraints of a severe
criminal code. This maxim we find verified in the legis-
lation of all nations in the early periods of their exist-
ence. A scale of punishments proportioned to the malig-
nity of crimes is beyond the legislative philosophy of such
a people, except so far as the simple principle of retalia-
tion can be applied. For a corrective code, they have
neither the skill to frame one, nor the patience necessary
to carry it into execution.

The principle may be still farther illustrated by a re-
ference to people of different characters and pursuits.
The laws adapted to a nation wholly devoted to the cul-
tivation of the soil, would be little lilted to another ex-
clusively occupied in the adventurous risks, and extensive
designs of commerce. Israel, or Sparta could not have
prudently exchanged their civil, or political systems with
Tyre, or with Rhodes. Laws suited to French levity, and
vanity, would ill assort with Spanish gravity and pride.
The institutions of Athens would have overturned Spar-

303

ta ,* and an attempt to introduce the code of Lycurgus at
Vlhens would have produced a civil revolution. In the
century before the last, we have seen England attempt to
establish a republic ; but her manners were not adapted
to such a change, and, after yielding for a season to the
power of a bold usurper, she was obliged, at last, to take
refuge again in the monarchy she had thought to aban-
don. It remains yet to be proved whether the manners
and spirit of the French nation can support the democra-
cy at which they are aiming ; or, whether they will not,
after infinite miseries and convulsions, be obliged to have
recourse again to their exiled nobility, and royal family,
or must have the ferocity of their passions repressed by
the iron hand of some more powerful despot that shall
spring out of the flames of this volcano.*

As laws, whether political, or civil, ought to be rela-
tive, to a certain degree, to the spirit and manners of a
nation ; it is sometimes desirable, likewise, to introduce
a gradual change into the public manners; to which the
laws may sometimes be made to operate by a reflex influ-
ence. But, as manners, ancient customs, and habitual

* These lectures were prepared in the years 1793 — 4, and
the author was stigmatized by some indiscreet zealots, for not
possessing that ardent spirit ofliberty which couid entertain no
doubt of the success of that extraordinary revolution ; and that
the world was unquestionably going to be regenerated, in the
phrase of the day, by the conciergerie, and the guillotine.

30*

ideas avc very precious to a nation, and become intimate-
ly blended with all their pleasures, and even with all their
sentiments of rectitude and morality, a law should sel-
dom aim directly at producing such an important change ;
but rather study to attain its object by an indirect influ-
ence, which, though more tedious in its operation, will>
in the end, by uniting the general opinion in its favor, be
more sure in its effect. If a legislator, for example,
should wish to establish universal liberty in a country in
which domestic slavery at present exists, a direct law for
that purpose would probably produce a convulsion in the
state, and overturn the authority of the government.
Whereas the same end might, perhaps, be more effectu-
ally accomplished in the progress of time, by encouraging
the humanity of individuals, under such restrictions as
the safety of the state might require, to emancipate their
slaves, till example should, at length, grow into custom ;
or, stiil more certainly, by favoring the establishment of
a peculium, by the improvement of which every industri-
ous slave might be enabled, after a reasonable period, to
purchase his freedom.

Manners and customs, however, are better changed by
example than by law. But that example ought to be gra-
dual and insinuating, exhibited by those who are calcula-
ted to attract the respect of the public, and should never
openly shock the prejudices of a people, or directly wound

305

their sentiments of propriety. Montesquieu remarks that
when the Czar Peter 1st attempted, hy an ordinance, to
shave the beards, and change the dress of his Russians,
he had nearly excited a revolt : But, when he invited the
ladies to court, dressed in the stile of Europe, and encour-
aged his courtiers, by his favor, to imitate the European
habits and manners, he attained his purpose without vio-
lence.

But if a legislator desires to accommodate the ideas of
his people to the institutions he intends to establish, or to
give to those institutions the greatest stability and dura-
tion of which human laws are susceptible, no mean can
be found so effectual as a proper direction of the public
education. The ancient legislators seem perfectly to have
comprehended the full force of education. And, upon this
foundation, they, almost all, concurred to rest the stabil-
ity of their laws. But as their republics were generally
of small extent, their systems of education were accord-
ingly calculated to their confined limits, and could hardly
have been reduced to practice over an extended territory.
But, without confining our view to those gymnastic mod-
els which they present to us, it is a duty of high impor-
tance in the legislature of each state to provide for the
general information of the citizens in the principles of vir-
tue and good morals, and in the whole system of their

vox. ii. ti q

306

civil and social duties. The means of useful instruction
should be made accessible to every member of the com-
munity. But, besides that universal information which
should convey the knowledge of their moral, and their
civil duties to the lowest orders of the citizens, it is per-
haps of not less importance that an easy access should be
opened to a knowledge of all the liberal arts, and to the
higher branches of science to those who have inclination
and leisure to pursue them. And colleges and academies
devoted to the cultivation of the principles of universal
literature, might be regarded as so many elementary
schools for training a constant succession of wise and en-
lightened statesmen for the republic, and fountains of a
diffusive illumination that should contribute to its glory
and happiness. A well informed people, moulded in the
habits of virtue, cannot easily be enslaved. But no de-
partment of knowledge can be of more importance to the
citizen, or more beneficial to the state, than that of the
civil constitution under which he lives, and of the great
outlines of the laws by which he is governed. And it
would be a work worthy the wisdom of the legislature of
a free and enlightened people to provide for the compila-
tion of an elementary work of this kind, which should
form a part of the instruction in every primary school
within the state. Understanding the principles of the
government, attaches the citizen more firmly to them,

307

and awakens his vigilance to their preservation. The
knowledge of the laws, as far as they are understood, in-
creases his love of justice. The simple elements of the
jurisprudence of the republic,— .those elements especially,
which are connected with all the ordinary transactions of
society, should form a necessary branch of the education
of a citizen, from the highest to the lowest order of
schools in the state.

The policy of the great Jewish legislator on this sub-
ject was admirable. He incorporated his political, and
civil institutions with the laws of religion. The people
were enjoined continually to read them in private, and
they were publicly read in their audience on every sab-
bath. And, still more solemnly, tbey were recited at all
the great festivals to the assembled nation. Every Is-
raelite, as was the intention of Moses, had the laws of
his country, and of his religion, its civil police, and its
sacred ritual, in a great measure, by heart. They were
incorporated, moreover, with all his ideas, and all his af-
fections. Hence these institutions have endured longer
than those of any other legislator, and have ever been ad-
hered to by that people with a more ardent, and perse-
vering zeal, than lias been found in any other nation.

S0&

OF THE CORRUPTION OF THE PRINCIPLES OF THE GOV-
ERNMENT.

As the laws ought to be relative to the principle by
which the government is made to move, education, cus-
toms, manners, every thing in the state of the republic,
should contribute to strengthen that principle. But there
is a certain excess to which the actuating spring of each
government tends, which it is no less requisite to repress
with the utmost vigilance of the law. — For example, the
principle of a monarchy, says Montesquieu, is corrupted,
when the prince, forgetting that it is his interest to main-
tain only a general inspection into the government, by
his authority preserving the magistrates attentive to their
duty, affects to govern every thing immediately by him-
self, and his creatures, destroying the privileges and cus-
toms which time has rendered sacred in the esteem of the
people, and by which they still retain a portion of liberty
amidst the overwhelming power of the monarch, — when
he thinks he shews his power more by changing, than by
conforming to the laws, — when he calls all the considera-
ble officers of the state round his own person, to make
them feel their dependence, and to receive their flatteries,
— when, stripping his ministers of popular respect, he
uses them merely as the tools of arbitrary power, — when
the honors of the state are prostituted to the low and in-
famous panders of the prince's pleasures, — and when,

309

mistaking bis true interest, he would govern, rather by
exciting the fear," than by gaining the affection of his
people ; and studies more to intimidate them by the cru-
elty of his executions, than to win their confidence by his
public services, and the wisdom of his administration.
Such a monarchy is hastening into despotism ; and the
infatuated monarch is creating tbat insecurity for himself,
which it seems his principal study, by the severity of his
measures, to avoid. — Supreme power, united with the
bad education of princes, has a strong tendency to this
issue in the progress of a very few successions.

The principle of a democratic republic is corrupted
when the spirit of equality, which is naturally cherished
by the enjoyment of liberty, is carried to an extreme. All
men, by nature, have equal rights. And in a well regula-
ted republic they possess equal rights as citizens. But,
from that equality of right, by which each man is secured
in the possession of the fruits of his own industry, and
ingenuity, and in the fortuitous accessions which have
fallen to him by the natural order of things, or the ar-
rangements of society, necessarily arises, in a course of
time, an inequality of property among the citizens. And,
from the necessary order of government results an in-
equality of rank between the magistrate and the citizen.
It is essential to the peace and prosperity of the state that
property should be respected, that the citizens should be

310

obedient to the laws, and should reverence the magistrate
as their interpreter, and the organ of their justice. But
when that reverence is withdrawn from the magistrate,
or when magistrates render themselves unworthy of the
public confidence by private and mercenary aims in the
discharge of their civil functions ,• when the people grow
impatient of law and order, and wantonly endeavor to
subvert them through the variable caprice of popular
passion, or in unjustly pursuing the objects of faction ;
or, when the magistrate, embarked in the vortex of fac-
tion, puts himself at the head of a party instead of his
country ; — or, finally, when the mass of the. people, flat-
tered by their demagogues, grow insolent and envious of
the rich, and are impelled to infringe on the sacred rights
of property, the republic is on the eve of dissolution. To
this extreme the democratic form of government, unless
placed under the strictest guards, and regulated by the
happiest organization, as naturally tends as monarchy to-
wards despotism. For, every thing depending on the
people, those who are ambitious to court their favor
are ever ready to flatter them on their power that
they may turn it to their own interest,— .to inflame their
passions that they may be permitted to direct them, — to
excite suspicions, or hatred against those who have the
actual administration of affairs, that they themselves may
mount into office on the turbulent tide which they have

811

created. Thus the people become haughty and impatient
of control, and are so jealous of their liberties, for, it is
on this subject that their demagogues perpetually ha-
rangue them, that they bear with difficulty the restraints
of government. The lowest and poorest aspire to be on a
level with the richest, and have always been found, in a
course of time, to turn their attention towards a division
of the property of the state among themselves. Becoming
idle, at last, as well as insolent, the elections are made
venal. The populace must be gratified, whatever their
pleasures cost, at the expense either of the public, or of
those who solicit their suffrages : and if the latter, means
must be found to reimburse it out of the public treasure.
But, while the populace are indulged, their servants, who
are also their masters, may securely pillage the coffers of
the state, or dispose of its honors, or its offices, to their
friends, for their own advantage. The deluded people will
not suffer them to be called to account. Corruption and
anarchy continue to increase, till different popular favor-
ites starting up, and aiming to enslave the people by means
of the people themselves, they are all, at length, superce-
ded by one more fortunate than the rest ; who becomes
the tyrant of a new dynasty. — Thus perished the liberty
©f Rome ; and, in a similar vicissitude, many of the Gre-
cian states long vibrated between anarchy and the tyran-
ny of successive demagogues.

Sl'Z

A democracy has two evils to avoid : — .one is great in-
equality of wealth among the citizens which leads to
aristocracy ; — the other is the spirit of extreme equality,
which leads to anarchy in the first place, and tends event-
ually, in the natural progress of events, to despotism.
This spirit in a republic, is greatly cherished by foreign
conquests, and splendid national successes acquired chiefly
by the influence of the people. Arrogant and intractable,
they will hardly then submit to the control of the supe-
rior, but mild authority of the laws. Jealous of the ma-
gistrates, they become jealous of the magistracy itself.
They devote themselves, often with a certain frenzy, to
any leader who promises to augment their glory, who
flatters their vanity, cherishes their idleness, and gratifies
their extravagance by the influx and dissipation of foreign
wealth gathered from the spoils of nations.

OF FRUGALITY IN A REPUBLIC, AND THE MEANS TO
PROMOTE IT.

The spirit of republican virtue is greatly aided by the
frugal and simple manners of the citizens. A people of
simple manners have seldom any strong voluptuous, or
mercenary passions to divide or divert their attention
from that superior concern which every good citizen
should feel for his country. On this the whole force of
their minds will naturally be bestowed. But when luxury
invades the degenerate community, the considerations of

313

public good are commonly lost in the pursuits of private
pleasure and ambition. General luxury, and genuine pat-
riotism in the spirit of a country, are forever incompati-
ble. The state ought, in such a case, if possible, to pos-
sess some means of revolving easily into another form of
government. The laws in a commonwealth, in order to
preserve the public virtue, should study to preserve the
frugality of the public manners. One of the most effec-
tual, and least offensive means of arriving at this end,
would be, by prudent regulations, preventing the growth
of extreme inequality in the fortunes of individual citi-
zens. In many of the ancient republics a violent measure
was attempted for this purpose by the establishment of
agrarian laws, and founding the civil order of the state
on an equal division of the lands among all the citizens.
Such laws, however, are not practicable, except in states
of very small extent, founded entirely on agricultural in-
stitutions. They are, moreover, utterly inconsistent with
the spirit and principles of a nation addicted to commerce ;
which, in the midst of wealth, and a certain magnificence
which accompanies it, is always frugal. A more eligible
method, perhaps, to introduce as great an equality into
the state as is practicable, and beneficial, is by the regu-
lation of dowries, inheritances, and testamentary settle^
ments, so that the largest estate which any man may ac-
quire by the most successful industry, shall, usually, be
vol. ii. k r

31*

so divided among his licirs as shall seldom place them
above the necessity of a prudent and habitual exertion of
their own talents. — .The best model of an agrarian law
which the history of ancient nations presents to us was
that established by Moses in the land of Israel, which,
while it promoted all the economy, and frugality aimed
at by the division of the lands, permitted, at the same
time, to a certain degree, of the elegant accommodations
furnished by commerce.*

Some small republics have appointed senates to be per-
petual models of manners.

It is evident that such an institution could be of no use
ijn an extensive state in which the senators must be in a
great measure lost from the view of the great majority of
the people.

The censorship was instituted among the Romans to
preserve the purity of the public manners. While man-
ners continued pure it assisted in their preservation. But
when luxury invaded the mass of the people, together

* Money exchanges, and the use of credit, which were al-
most utterly excluded by the institutions of Lycurgus, by his
iron medium, and the unalienable tenure of lands, had a certain
existence in Israel, by the circulation of the precious metals,
and the power of pledging lands for the redemption of loans,
or the liquidation of debts, till the period of the Jubilee, which
might be from one to fifty years.

31o

with its attendants voluptuousness and ostentation, the of-
fice eould no longer be executed. It is evident that this,
like the former, is an institution which can be of no utili-
ty beyond the bounds of a single city, and its environs.

It is a maxim which merits the particular attention of
the legislator ; that while the principle of the constitution
is preserved in its purity, the worst laws may be harmless,
but when that is corrupted, the best are often rendered
useless, or pernicious. Among a virtuous people an oath
is more powerful than interest. A Roman consul could
lead a whole army to their duty by the remembrance of the
oath they had taken before their standards, in opposition
to the most violent impulses of seditious passions. But
when the popular mass is corrupted, oaths are only made
a protection to crimes : and the frequency of swearing
only tends more effectually to prostrate the public morals.
— And Plutarch remarks that the gymnastic exercises of
Sparta, which anciently contributed to form hardy sol-
diers for the defence of the state, afterwards, when the
people had lost their virtue, only infected the youth with
cowardice, and inclined them to infamous passions.

OF SUMPTUARY LAWS.

It has been made a question among political moralists,
how far frugality ought to be enforced by sumptuary laws*
— or laws prescribing certain limit* to expense in the

316

dress, table, and equipage of the citizens. In proportion
as the political institutions, or physical circumstances of a
state, have contributed to bring the property of the citi-
zens nearly to an equality, sumptuary laws become un-
necessary. Luxury cannot exist in such a state ; but
after great inequality has already taken place, they are
inexpedient, because they cannot be executed without ex-
citing public discontent. In the extreme rusticity of the
Spartan manners they might be beneficial to prevent, or
arrest a decay of the principle of the constitution. In a
state that exists by commerce they are often injurious ;
for, notwithstanding the spirit of commerce is frugal, yet
a certain elegance, and even magnificence of expense in
wealthy merchants, is useful for the encouragement of
the arts, and furnishing occupation to the lower orders of
citizens.

Frugality to a degree, is requisite in an aristocratic
government as well as in a democracy. Otherwise, that
moderation of the passions which is the principle of the
government, and essential to its prosperity, cannot be
maintained. Yet, as the government itself is founded in
great inequality of fortune, some legitimate means of ex-
pense should be encouraged which may at the same time,
be consistent with the frugality of private manners. Other-
wise, we should every where see, in such a state as this,
very poor men without the possibility of bettering their

317

fortune, and very rich men without the power of enjoying
theirs. The state will he impeded in its prosperity for
want of a proper circulation of its wealth.

To remedy this inconvenience, that was an excellent
custom among the ancient Greeks, by which the wealthy
were encouraged to employ their riches in executing
chargeable offices for the good of their country and in
festivals and choruses for the entertainment of the peo-
ple. To these might be added, the erection of libraries
fordiffusing the lights of science more extensively through
the republic — the raising of statues and monuments in
commemoration of the distinguished patriots, or the great
events of the nation — forming gardens and public walks
for the accommodation of the citizens — and, above all, exe-
cuting canals, roads, harbors, and other noble and gene-
rous labors for the improvement and glory of their coun-
try. To all which they might be encouraged by public
honors, and by some conspicuous means of perpetuating
the remembrance of their works. — Athens frequently ex-
hibited the most distinguished union of public magnifi-
cence with private simplicity. In that renowned city in
which existed the most splendid monuments of the arts,
erected by the noble munificence of private citizens, we
might often see them entering their own doors by a sim-
ple latch.

118

LECTURE XXVIII.

OF THE OBJECTS OF NATIONAL POLICY ', AND FIRST OF A
POLITICAL CONSTITUTION.

Of the separation, and union of the different powers of

government of the British constitution The analogy

of the constitutions of the several states — and of that
espccialhj of the United States.

I PROCEED, in this lecture, to the second branch
of the science of politics, which is to point out, anil illus-
trate some of the principal objects of national policy ;—*-
the establishment of a political constitution, — taxation
and revenue, — the regulation of commerce,-r-the means
of promoting population, agriculture, and the arts. On
the last three of these subjects I have already, in the third
and fifth lectures, made such observations as I thought
were necessary for our present purpose. I shall now,
therefore, make only a few reflections on the three for-
mer, as far as I conceive every student ought to be ac-
quainted with the subject, before he leaves the place of
liis elementary education, let his pursuits afterwards in
life be what they may. At the same time, brief as they
are, they may serve as a useful introduction, to prepare
the minds of those wh<* arc aiming to become civilians,

319

to enter more extensively hereafter into the career of
their political studies.

OF A POLITICAL CONSTITUTION.

Most governments have been originally founded in the
authority of a single person, or of a few families, which
has gradually grown up by custom, or ultimately termi-
nated, after various revolutions, and changes, in the do-
minion of one. The schemes of policy have seldom been
deliberately formed, and established by the will of the
people who have voluntarily submitted themselves to the
control of their own laws. It is not sufficient, however,
that a great people enjoy the privilege of chusing their
own government, unless the fabric of it is so wisely con-
structed as to secure its own duration, and to give as much
liberty as possible to the citizen, in consistency with the
general good order of society. This must be provided for
in the internal organization of the political system in
such a manner that, while all the parts move together
harmoniously to promote the public welfare, no one part
shall have such disproportioned strength as to afford
either the means, or the motives to disturb, or improperly
control the motions of the rest, while the true interest of
all shall be, as near as the errors, and imperfection of
human judgment will permit, the common interest of the,
nation. That frame of the government which is oalcu-

320

lated to afford this permanent security for the freedom
and happiness of the people, is called the political liberty
of the constitution. Civil liberty consists in the security
which they have of property, and of personal safety, and
in the undisturbed opinion which they enjoy of that se-
curity.

Sometimes manners, customs, religion, a fortunate
combination of circumstances, will procure for a nation a
greater portion of civil liberty, that is, of personal free-
dom and security, than their political constitution pro-
mises to bestow ', and sometimes, beneath the impulse of
party feelings and passions, we perceive the oppressions
of arbitrary power amidst the most specious forms of
liberty.

The liberty of the constitution is produced by such a
distribution, and arrangement of the necessary powers of
government, that they shall severally impose a salutary
check upon each other, thereby preventing that abuse to
which unrestrained power is always prone. The great
powers of government have been divided into the legisla-
tive, the executive, and the judiciary. And the wisdom
of the legislator appears in the organization of these
powers in such a manner that they shall always preserve
an equable balance among them in the operations of the
government ; at the same time that each shall apply an

321

efficient restraint on the other departments, which may
in any way attempt to transcend the authorities entrusted
to it in the general organization.

If men were perfectly wise and virtuous, all the powers
of government might be entrusted in the same hands not
only with safety to the public liberties, but with advantage
to the public prosperity. But, as mankind are liable to
be impelled and misled by motives of interest and ambi-
tion, it is necessary to make their rival interests, and am-
bitious aims restrain one another. These powers must,
therefore, be deposited in different hands, and so balanced
and adjusted that the interest of each body composing the
government shall have more relation to the public good
than to any designs of either of the other bodies Avith
which they are associated in the government.

Although the perfect idea of political liberty requires
that the legislative, executive, and judiciary powers
should be preserved separate, yet, this maxim does not
imply that they should be entirely disunited, and uncon-
nected ; otherwise, in their mutual opposition, the move-
ments of the government might be arrested ; or one,
more powerful than the rest, would at length absorb
them all into itself, and thus establish a tyranny. Such
a connexion they ought to have as to make {hem mutually

necessary to one another ,• and such a mutually controlling
vol. ii. s s

322

power should they possess, that each should he ahle to
preserve itself in the full exercise of its peculiar authori-
ties, and privileges, against the encroachments of either
of the others, or of hoth united.*

The British constitution has often presented the text
on this subject to political writers. In this celebrated
model, from which many of the most useful traits in our
own have been drawn, the king possesses a negative on
the proceedings of parliament. — The representatives of
the people enjoy a check on the monarch's prerogative of
levying and commanding the army by the privilege of
originating all supply bills. These two branches of the
government are perfectly independent on one another,
the king being hereditary, and his person sacred, and in
the other branch of the government, one of its component
parts being likewise hereditary, and the other appointed
immediately by the people. The judges, although they
are appointed, and receive their commissions from the
king, yet are so far independent that they cannot be re-
moved from office except by the joint application of both

* See these ideas beautifully illustrated in Montesquieu's
Spirit of Laws, book 1 1th, ch. 6, where he treats of the British
constitution. You will find them happily applied to the Ameri-
can constitutions, and that, particularly, of the general govern-
ment of the United States, in the Federalist, a book which de-
serves the most attentive perusal of every American citizen. —
See especially Nos. 48—5 1 .

323

houses of parliament. The king possesses a share in the
legislature by his negative on the resolutions of the lords
and commons, and by his power of making treaties with
foreign nations. The house of lords possesses a share in
the judiciary, being the only court for the trial of im-
peachments, and having supreme appellate jurisdiction in
all other causes. The judges so far partake of executive
and legislative influence, that they form one of the king's
constitutional councils, and are sometimes called to assist
in the deliberations of the legislature, though they do not
enjoy the efficient power of a vote in any act of that body.

This government furnishes the most complete example
existing in any nation, unless, perhaps, we may except
our own, of the separation, and independence, of these
powers in the constitution, and yet the necessary connex-
ions, and relations subsisting between the bodies respec-
tively exercising them. The supreme executive, being
hereditary, and surrounded with the majesty of a throne,
derives thence that elevated dignity, and powerful influ-
ence which are requisite to balance the immense weight
of the legislature. The division of the legislature into two
bodies lessens the force of its action upon the executive,
which would otherwise be irresistible. And the lords,
holding an intermediate rank between the prince, and the
commons, are enabled to preserve the equilibrium of the
government by adding their weight sometimes to one

324

scale, and sometimes to the other, which would, other-
wise, frequently vibrate very unequally. In the contest
for power, the representative body of the people are
known once to have prevailed, and overturned all the
other orders of the state. And their weight in the gov-
ernment would, perhaps, always be too great for both the
correlative bodies of the constitution, if the decayed bor-
oughs did not give the crown an opportunity of purcha-
sing, or powerfully influencing a part of the popular rep-
resentation. This unfortunate remedy, however, for an
immediate inconvenience, is preparing the way to a very
different result, and eventually introducing, perhaps, a
much greater evil. There is infinite danger that the cor-
ruption of the legislative body will yield, in time, an un-
controllable power to the crown. This is the meaning of
Montesquieu when he says, « that beautiful fabric will
perish as all other governments have done. It will perish
when Ihe legislative becomes more corrupt than the exe-
cutive."

The American states have endeavoured to imitate this
model, as far as the difference of their circumstances
would permit. They were obliged to create the bodies
which exercise the three great powers of government out
of the same uniform mass of the people, and have studied
to give them as much independence as possible on one
another, by the different modes of their election. I had

525

intended to present to you a philosophical examination of
the principal points of the federal constitution, on the
most acknowledged principles of good policy, if the sever-
ity and tediousness of my present indisposition had not
arrested my design, as it has ohliged me also to curtail,
or omit many of the subjects which I had proposed to my-
self in the latter part of these lectures. But I cannot for-
bear recommending to your perusal again, the excellent
and detailed analysis of the whole constitution, in the
Federalist, a work which was the combined production of
several of the ablest civilians in America. It deserves,
however, to be here remarked, that the Americans, in their
first efforts to frame the political constitutions of the sev-
eral states, as well as of the United States, fixing their
view too strongly on the terrors of a tyranny from which
they had but just escaped, and making too high an esti-
mate of the wisdom and the virtue of the people, from
their exploits and sacrifices during the war of the revo-
lution, when the pressure of imminent danger repressed
almost every other passion among them but love of the
public, generally laid the executive under too great res-
traint, and, in the same proportion, enlarged, beyond
their due bounds, the power of the legislative. They re-
membered that power in the hands of a single person
always aims to extend its sphere. But they often seem to
have forgotten, that its tendency is the same in the hand?

326

of the many, as of one : and that commonly the encroach-
ments of a numerous body, are even more rapid, and more
bold. They derive confidence from their numbers, and their
supposed influence with the people. In all the constitu-
tions of the individual states the balance inclines, perhaps
too much, to the popular scale. In most of them, the leg-
islative bodies have already been making repeated en-
croachments on both their executive and judiciary depart-
ments. Of this Mr Jefferson, in his notes on Virginia,
complains in his comments on the conduct of the legisla-
ture of that state. « They have in many instances, says
he,# decided rights which should have been left to judi-
ciary controversy ; and the direction of the executive,
during the whole time of their session, is becoming habit-
ual and familiar." For a like reason some of the states,
and especially Pennsylvania, have been obliged, by call-
ing a new convention, to re-model their constitutions. And
it is well known that the constitution of New-Jersey has
grossly confounded all the powers of government, and
suffered its legislature to absorb almost the whole.

The convention of confederated America, in framing
the federal constitution, has studied, as far as possible, or,
at least, as far as the state of society, and the preposes-
sions of the country would admit, to escape these errors.
We find, in experience however, that the legislative branch,

* Notes on Virginia, p. 195.

327

and especially the lower house, which is composed of the
most immediate representatives of the people, is still aim-
ing at a similar accumulation of power in the popular
branch. And this dangerous project it has means, pecu-
liar to its own body, of successfully pursuing. It is al-
most impossible to give to the head of the executive, a
man selected from the mass of the people, that elevation
and dignity of character, and that powerful influence,
which will enable him effectually to resist their formida-
ble encroachments, or inspire him with that energy and
force of mind, that will support him, like the first presi-
dent of the United States, resting on the glory of his past
services, in daring to repel their unreasonable demands.
It gives me pleasure to be able to confirm these princi-
ples with regard to the tendencies of the popular branch
of the government, by the opinion of one of our most en-
lightened politicians, delivered at the very commencement
of the present federal government, a time when his judg-
ment cannot be supposed to have received any bias from
existing parties.* " In a government, says lie, where nu-
merous and extensive prerogatives are placed in the hands
of an hereditary monarch, the executive department is
very justly regarded as the source of danger, and watched
v. ith all the jealousy which a zeal for liberty ought to in-

* Mr Madison of Virginia, now president of the United
Stales. Federalist, No. 68, near the middle.

328

spire. But, in a representative republic, where the exe-
cutive magistracy is carefully limited both in the extent
and the duration of its power, and where the legislative
power is exercised by an assembly which is inspired by a
supposed influence over the people, with an intrepid con-
fidence in its own strength, — which is sufficiently nume-
rous to feel all the passions which actuate the multitude ;
yet not so numerous as to be incapable of pursuing its
objects by means which reason prescribes, — it is against
the enterprizing ambition of this department that the
people ought to indulge all their jealousy, and exhaust all
their precautions." — " The legislative department, he
adds, derives a superiority in our government from other
circumstances. Its constitutional powers, being at once
more extensive, and less susceptible of precise limits, it
can, with greater facility, mask under complicated and
indirect measures, the encroachments which it makes on
the co-ordinate departments." And afterwards, " nor is
this all : as the legislative department alone has access to
the pockets of the people, and has, in some constitutions,
full discretion, and, in all, a prevailing influence over the
pecuniary rewards of those who fill the other depart-
ments, a dependence is thus created in the latter which
gives still greater facility to encroachments of the former."

It was frequent with the ancient philosophers of Greece
to sketch their ideas of a perfect republic, and, in theory,

329

to pursue its organization into all its details. The exam*
pie has been followed by some modern writers. I shall
not attempt to imitate them. Your ideas upon this sub-
ject will be better matured by comparing together differ-
ent forms of government in the course of your studies,
and examining in history the practical effects of each.
The great desideratum in the scienee of politics is the
distribution and organization of the three powers which
have been mentioned, in such a manner, that they shall
always move in concert for the public good, and, at the
same time, shall form such necessary checks on one
another, that the integrity and balance of the whole shall
be permanently preserved. The imperfection of human
nature, however, hardly leaves us room to hope that this
idea shall ever be completely realized.

Instead of presenting you with any ideal system I shall
expect you to commit faithfully to memory that form of
government under which we live, and which is, perhaps,
the best practical scheme of a confederated republican in-
stitution which has ever been framed. The principles of
our government, and, if possible, a summary of our legal
institutions, I have before said, ought to form essential
objects in the education of every American scholar.

[Here the federal constitution is to be committed to
memory.]

vol. ii. t t

330

LECTURE XXIX.

Of other objects of national policy, taxation and com-
merce.— Of demesne — capitation — assessment — customs.
Customs ought not to he laid on the necessaries of life-
hut on superfluities — no branch of trade should be op-
pressively burdened. The merchant advances the im-
post to the state — The consumer ultimately pays it.
Frauds on the revenue restrained by fiscal punishments.
When the laivs are equitable, these punishments may be
severe, they are otherwise ruinous to trade. — Of excise.
— Of the maxim, that taxes contribute to the benefit of a
state, and sometimes to the improvement of manufac-
tures— Of commerce internal and external — Of econom-
ical commerce — Liberty necessary to a flourishing com-
merce— Of banks — Of the incorporation of exclusive
companies for trade — Commerce ought to befrec — Of
commercial treaties — Of facilities for compelling punc-
tuality in commercial engagements-— Of the balance of
trade — Of money — Of coinage — Of bills of exchange.

ONE of the principal operations of government re-
lates to the laying and collecting of revenue. Revenue is
that portion of the property of the citizens which is re-
quired by government for the immediate purposes of the

331

state. Formerly, the greater part of the income of the
princes of Europe, except the feudal services of theii* vas-
sals, arose from demesne ; that is, from those lands at-
tached to the crown, which might he considered as the
landed estate of the sovereign. A source of revenue of
this kind may exist in countries newly occupied, as in the
United States of America, in which are large quantities of
land not yet distributed in private property, from the sale
of which a considerable augmentation may be derived to
the public treasury. This, from the natural progress of
society, will be daily diminishing, and it is the interest of
the public that, as speedily as possible, it should be
wholly extinguished, leaving no portion of the soil unap-
propriated by useful and active citizens. The chief means
ofprovidingforthe public exigencies therefore, is taxation.
And one of the principal objects of political science is to
be able to impose, and to raise taxes in such a way as shall
be most effectual to supply the necessities of the state, and
be the least burdensome to the citizens.

Taxes ought to regulated according to the real exigen-
cies of the government, and the convenience of the peo-
ple. But the exigencies of the government should never
be measured by the ambition, caprice, or passions of
those who have the direction of public affairs ', nor of the
people themselves in those momentary paroxysms of rage,
or of vanity to which they are sometimes stirred up by

332

their demagogues. The democratic mass are often not
less apt than princes, to be seduced by an imaginary glory,
and often excited by a sudden impulse of passion, to pur-
sue expensive schemes that flatter the national vanity for
a while, but in the end draw after them poverty and ruin.
When the real wants of a country are ascertained, these
must be provided for, how great soever may be the cost,
or effort.

In raising the necessary revenues of the state, it should
be a consideration of primary concern with the legislature
to select those subjects of taxation which shall be least
oppressive to the people, and, at the same time, most
productive to the public. All taxes are reducible to the
heads of capitation, assessment, customs, or excise.
Capitation, as its name imports, is a tribute levied on
the citizens simply according to their number. This is,
perhaps, the most unequal mode of taxation. The rich
man pays nothing more than the poor ; and the poor man
nothing less than the rich. It is a tax however, which,
from the simplicity of its nature, is peculiarly adapted to
despotic states. In them many and intricate details do
not agree with the genius of the government. And much
complication in the system of finance, would afford tbe
officers of the prince too great an opportunity to oppress
the su'»ke(s without auv means of detection, or redress.

333

Assessment is a certain proportional rate levied on the
property, or wealth of each citizen. Such a system of
taxation may be rendered perfectly equitable and just,
although the greatest inequality subsist in the property of
different citizens. Land being the most visible and per-
manent subject of property, is best adapted to this spe-
cies of taxation. Stock in trade is much more difficult to
be ascertained with the precision requisite fcr an equita-
ble tax. It is of so fluctuating a nature as to render it al-
most impossible to be sure that you possess its real amount.
And attempts to assess it with accuracy would probably
be attended with many frauds in the proprietor, or with
oppression on the part of the government, and an impro-
per disclosure of the secrets of trade.

Assessments of land for the purposes of taxation should
be framed not merely according to its quantity, or ad-
measurement, but according to the quality of the soil,
and the nature and value of its produce. These circum-
stances cannot be designated by any law, but may gene-
rally be ascertained by honest and judicious men of the
vicinity without oppression or fraud, and without any
great error from the truth of the facts.

In laying the rate of taxes, allowance should always be
made for the necessaries of life. Necessaries ought always
to be exempted from every public burden. The surplus

33*

above these which the soil would yield under a prudent
and industrious cultivation should solely be the object of
taxation. Taxes ought as much as possible to be laid only
on convenicncies and superfluities.

Customs are that species of taxation which is most fa-
vorable to liberty, or, at least, to that sense of freedom so
dear to every citizen, and so necessary to the general con-
tentment, and happiness of the people. They are imposts
laid according to a certain rate, prescribed by law, on
merchandize imported, exported, or exchanged in trade.
"When prudently laid, the merchant always makes the
advance to the state, required by the revenue ; and is re-
imbursed by a proportional augmentation in the price of
his commodities. Eventually the consumer pays the im-
post to the merchant, which he has advanced to the state ;
but confounding it with the price of the goods, he consid-
ers it as a voluntary bargain, and is not sensible that he
is paying a contribution to the public. This is the ground
of his contentment. The demand for money is always
odious, when no compensation for it, real or imaginary, is
perceived. But when men seem to receive an equivalent,
the duty is cheerfully paid. This is the great advantage
of this species of tax : the payment being wholly optional
on the part of the consumer, he considers it not as a de-
mand of the state, but merely as an ordinary transaction
of commerce. In order to favor this deception, so con-

335

ducive to the public tranquility, two principles are im-
portant to be observed, — in the first place, that there
be a reasonable proportion between the quantity of
the impost, and the natural price of the commodity.
Otherwise the tax is felt, aud (he illusion is at an end.
In the next place, imposts should not be laid on such arti-
cles as are become absolute necessaries of life among the
poor, except, perhaps, in some rare instances in which
they cannot easily be reached by any other tax. Such
duties operate like a capitation, and are necessarily griev-
ous and unequal in their pressure upon the people. A
wise policy will lay them as much as possible on mere
luxuries, and merchandizes of costly ornament and ac-
commodation. In that case, they fall directly on the
wealthy, or the prodigal, and are the most willingly paid.

It is the part of legislative wisdom not to impose an
unequal burden on any branch of commerce. Large im-
posts may be so laid as to defeat their own end, and impair
the revenue by diminishing consumption, or amounting
to a prohibition of the article. Moderate customs, with a
flourishing commerce, serve most effectually to replenish
the public treasury.

Another observation merits attention on this subject.
As the merchant who makes the advance of the duties to
the state must not only be eventually reimbursed, but re-

356

eeive a profit upon this advance, as well as upon all other
monies employed in his mercantile transactions, the
earlier in trade any customs or duties are made payable
to the public, each transfer requiring a new profit, the
more the prices of the goods become increased at last to
the consumer.

Customs, when raised beyond a certain reasonable pro-
portion between the duty and the original price of the
commodity, if they do not lessen importation, always af-
ford temptations to the practice of smuggling, so injurious
to the public morals, as well as to the revenue. Whenever
the risk of smuggling is overbalanced by the amount of
the impost, the treasury will be defrauded.

Frauds committed on the revenue are restrained, or
corrected by fiscal punishments. When imposts are mod-
erate, and the nation free, that is, subject only to the
government of laws, and not of men, these penalties may
be made severe. They may be even more severe than
they can be made in despotic states with any safety to
the interests of commerce. But if they are excessive,
then rigorous fiscal punishments operate the ruin of trade-
as well as the oppression of the citizen.

The last species of taxation is excise, which is a duty
paid on commodities in actual occupation and use ; not
levied as customs are on goods in trade, and in the course

3*5

sent to Flanders, was interdicted in England, that it might
produce a greater profit at home, by being worked into
cloth.

The freedom, or facility of trade is injured by all
unnecessary delays, or intricacies in the transaction of
business at the custom houses. The more effectually
the laws guard the trader from imposition, and the
fewer auditors and judges he is obliged to be con-
cerned with, the more favorable is the policy to the ope-
rations of commerce. Its affairs are the transactions of
every day. Expedition therefore, in all the forms of bu-
siness, and in all the judicial questions arising in it, is of
the greatest utility to the merchant.

As the life of commerce depends upon the punctual
fulfilment of engagements, every facility should be put in
the power of the merchant to compel punctuality in con-
tracts. Let it be lawful for him, says Montesquieu, even
to seize the person for debt. That great oracle of legis-
lation speaks of it as an excellent law in Geneva which
excludes from the chief honors and privileges of the state
the children of those who die insolvent unless they have
first discharged the debts of their parents.

In the intercourse between nations, there will generally

arise in the settlement of their accounts at the close of

each year, a balance due from one to another. An unfa-
vol. ri. xx

346

vorable balance due to one nation must be compensated
by a favorable one received from some other ,• otherwise
the specie, which supplies the channels of its trade,
would, in time, be drained from the country, and a stag-
nation in business ensue. Commercial nations are fre-
quently seen indulging an unnecessary solicitude con-
cerning the balance of trade, and fatiguing themselves
with jealous calculations and fears about its poise. If the
laws are good, the manners industrious, and the habits of
the nation frugal, these are the surest means of turning
the scale ultimately in its favor. Frugality enables artifi-
cers to work cheap, and merchants to trade on small
profits.*

* Two or three facts on this subject exist in the United States
which create surprize to foreigners, and are often little under-
stood by our own citizens. The price of labor in this country is
much higher than in Europe ; yet the products of the soil can
always be sent thither to a good market. On the other hand,
the expense attending the erection of manufactures is so great
as hitherto, except in a few instances, to prevent their estab-
lishment. The cause of both these effects is to be found in the
great quantity, and cheapness of our new and fertile lands.
One man is able to spread his labor over a much more ex-
tended surface in the ample plantations of America, than can
be done in the small and circumscribed districts, into which the
soil must be divided in Europe. And though the agriculture is
less perfect, yet the great scope which is under cultivation
throws off, in the end of the year, a more abundant product to
the industry of each husbandman.

sir

OF MONET.

Trade, in the early and rude ages of the world was car-
ried on by barter, or the exchange of one species of goods
for another. This was found, in time, to be inconvenient,
especially after exchanges, in the progress of society, ne-
cessarily became frequent. It was requisite, therefore, to
discover some medium of commerce which should be Avill-
ingly received, and acknowledged as a universal sign, and
standard of value. This medium, in order to subserve
the various purposes of trade, and to render it, at all
times, a safe and convenient mean of exchange ought to
possess the following properties. It ought, in the first
place, to have an intrinsic value, and to be in itself an ob-
ject of desire, and, therefore, a proper subject of com-
merce, as well as a sign of wealth, and a standard of the
value of all other things. This primary quality is requi-
site, because no authority can give a value to that which
possesses none in the public estimation. It ought, in the
next place, to be rare, that a small portion of it may rep-
resent a large quantity of other commodities, and be easily
portable for the convenience of trade. It should, for the
same purpose, be divisible into minute parts. And, finally
it ought to be durable, that it may not be liable to decay
by being exposed to the air, nor be easily worn and wast^
ed in passing from hand to hand.

348

The precious metals, and they alone, possess all these
properties ; and, therefore, have been employed in all na-
tions, where they could be procured, as the common sym-
bols of value. It has been frequently, though erroneously,
supposed that, intrinsically, money possesses no value,
though the sign of all value ; and this was long a vulgar
theoretic opinion. But gold and silver have their price in
trade as well as other commodities ; and, like them, this
price depends upon their relative quantity. If all the gold
and silver in the mercantile world were placed on one
side, and, on the opposite side, all other goods, the Avhole
value of the one would be equal to the whole value of the
other, and any proportional quantity of the one, would be
equal to a similar proportion of the other. Increase the
aggregate quantity of the precious metals, and each piece
will then possess a smaller relative value. If, in the pro-
gress of society, an improved industry and ingenuity in-
crease the quantity and perfection of the products and
manufactures of trading nations, the quantity of money
remaining the same, each piece will acquire an increased
price ; that is, it will purchase an additional quantify,
either in number, or in fineness, of those articles which
are brought by commerce into the market. This constant
ratio of things no law, or authority of the state can alter
without violence to liberty, and manifest injury to the in-
terests of trade. It is a mistaken policy in the govern-

349

ineiit ever to attempt to regulate the prices of the market,
farther than to prevent fraud in the genuineness, the
measure, or the weight of the articles brought into it.
Every arbitrary regulation, or attempt to change the na-
tural proportions between money, and other merchandize,
especially, of provision in a season of scarcity, will usu-
ally prove as abortive as it would be pernicous if it could
be carried into effect. This assumed power over the free-
dom of the merchant, tends to destroy industry, and in-
crease the distressing want for which it is proposed as
the mistaken remedy. If scarcity produces an alarming
augmentation of priees, that very circumstance holds out
the speediest prospect of relief. It awakens industry, and
invites a prompt supply from every quarter whence it can
be derived, till the increasing quantity in the market
again reduces the price towards its natural standard. AH
compulsion contributes to drive the means of relief out
of the market, and to continue the public distress. It
were better, in such a case, to afford a bounty on provi-
sion than to check the freedom of its sale, by limiting its
price.

or COINAGE.

The quantity and proportion of the metals is determin-
ed by weight. But, on account of the inconvenience- and
inaccuracy which must attend weighing buJIionin all the

350

multiplied transactions of commerce, after nations have
arrived at an advanced period of civilization, the govern-
ment usually takes that care upon itself, and affixes its
own signature and attestation to the weight of each piece
of money in the mint.* Coinage is the impression of a
known public mark on the respective pieces of gold and
silver in circulation, thereby pledging the public faith for
the exactness of the weight.

A certain known proportion of alloy is usually mixed
in coining wilh the precious metals, to increase their
durability, and to render the size of the small pieces more
convenient in passing them in tale. The practice of in-
creasing the quantity of alloy, or of raising the denomi-
nations of the coins, which have been sometimes resorted
to in arbitrary governments, in order to pay the public
debts with less than a just proportion of gold and silver,
is a dishonest expedient, as dangerous to the prince, as it
is void of faith to the nation.

BILLS OF EXCHANGE.

In the commercial transactions between nations, money
must often necessarily be remitted from one to another.
This necessity has given rise to bills of exchange, to save

* This denomination is derived from the low latin term mon-
eta, which signifies both the stamp upon coin, and the labora-
tory whence it is issued. It comes to the English through the
medium of Dutch word tnunte.

351

the risks of the sea. A bill is no more than a draft for
the money which may be owing from one merchant, to
satisfy the demand which may be due to another. When
equal sums are to be remitted from one nation to another,
bills may be purchased at par. "When greater sums are
due from one than are to be received from the other, the
nation against which the balance is found to lie, must
make its remittances in kind, or must pay an additional
sum for bills ; which sum must be estimated according to
the risks of remitting. The exchange, therefore, is
against that nation, and bills must be purchased at a
price above par. The balance of trade between two na-
tions may, of course, be generally determined, at any
period, by the rate of exchange.

552

LECTURE XXX.

OF THE 1AW OF NATURE AND NATIONS.

Of the law of nature and nations — It has attained its per-
fection only in modern times — The three-fold division
of that law — Of the rules and principles relative to a
state of peace — Of the independence and equality of na-
tions— Of intriguing with parties, or aiding factions —
The right of a nation to use its own resources, to its
own advantage, of making alliances, treaties, without
affording just cause of umbrage to others — Treaties not
annulled by a revolution in the government of either
nation — Treaties in the United States the supreme law
of the land — The interpretation of them vested in the
supreme court — Of the extent of the jurisdiction of
states — Of the intercourse and commerce of nations —
Of ambassadors or national representatives.

NATIONS, in their sovereign capacity, may be con-
sidered in reference to one another, as individual and
moral persons, subject, in their mutual intercourse, to
the rules of reason and humanity ; and amenable to no
common tribunal but the opinion of the world. The laws
of justice ought to subsist among all mankind. And the
interest of human nature requires that there should exist

of exchange, and transit from hand to hand. It is gene-
rally esteemed, and perhaps justly, a tax of the most
odious kind. For, although duties collected by excise
may not be actually so heavy as those drawn from cus-
toms and imposts upon trade, they are, notwithstanding,
more directly felt as a tax. — Besides, the methods neces-
sarily employed to discover exciseable goods are peculiarly
obnoxious to public opinion, and to the private peace, and
tranquility of families.

From two facts which very frequently occur, — that
the heaviest taxes are paid by free states ; and that
an additional tax laid upon a particular manufacture,
has been followed by an improvement in the quality, and
an augmentation in the quantity of the manufacture, it
has passed into a maxim with some political writers, that
the increase of taxes is beneficial to a state. — It is true,
that free states, from that spirit of industry and enter-
prize which accompanies the possession of liberty, are
more able to support the weight of taxes than arbitrary
governments ; and being commonly smaller in extent, and
surrounded by ambitious and dangerous neighbors, they
are often called to greater exertions in defence of their
rights, and their existence. But the ability to support
such impositions does not surely arise from any peculiar

tendency in taxation to augment the monied resources of
vol. ii. v u

*«

35S

the country, but from the nature ofthe government which,
is the nurse of industry, ami of every useful effort of hu-
man talents. And the augmentation of taxes does not
arise from any idea in their rulers, of their beneficial in-
fluence on the civil or commercial interests of the state,
but from the necessity of their situation.

It may likewise be remarked that a small and gradual
increase of taxes, within moderate bounds, may, on some
occasions, be found to stimulate industry, and, indirectly,
to contribute to the improvement of particular arts. —
To see how this may be effected let us attend to the fol-
lowing considerations.

There is a certain portion of labor requisite, and suffi-
cient to supply to each man the absolute necessaries of life,
far enough below the utmost exertion of his talents. When
he puts forth his efforts to their full power, they are able,
besides necessaries, to furnish him with a large supply of
convenient, comfortable, and even elegant accommodation.
Between these points, therefore, the moderate labor, on
the one hand, which is sufficient to supply the necessary
provisions of life, and the highest efforts of industry, on
the other, which may yield a large surplus of convenient
accommodation, taxes may be gradually augmented. And
as men may often want stronger motives, than simply the
prospect of a little additional gain, to stimulate them to

339

put forth all their powers, these motives may sometimes
be found in the necessity of furnishing the taxes demand-
ed by the state. But this rule ought carefully to be ob-
served, that whenever the public burdens are to be aug-
mented, it should be done by very small and gradual in-
crements, that, in the process of the operation, the people
may have leisure to learn by experience to feel their own
abilities. Great and sudden augmentations of their taxes
are calculated only to alarm and discourage them.

I add that the maximum of taxation, or the highest
surplus for public use, which the industry of the nation
can yield, after the necessary wants and ordinary conve-
nieneies of life have been supplied, ought seldom to be
aimed at by the rulers of a state. Human nature kept
constantly at its full exertion, will become fatigued and
dispirited, and be ready at length to bless a less free gov-
ernment, relieved from the oppressive weight of those
fiscal impositions. The state, moreover, ought not to be
always at its utmost effort. Emergencies will arise which
will require extraordinary exertions ; and strength ought
to be left to meet these demands.

OF LAWS RELATIVE TO COMMERCE.

Another of the most important operations of govern-
ment respects the encouragement and regulation of com-
merce. Commerce consists, in the exchange of the pro-

3iO

duets, or the labor of one country for those of another.
It is founded on the mutual wants of mankind, real or
factitious, and is ready always to furnish a supply for
those wants which it either finds, or creates. By afford-
ing a vent for the produce of labor, and procuring, in re-
turn, the means of desirable accommodation, it increases
industry, promotes the arts, and thereby augments the
wealth of a state. Commerce is the handmaid of agricul-
ture, and the arts, and by distributing their productions
over the world, prompts the industry of the husbandman,
and quickens the ingenuity of the artizan.

Commerce is either internal, consisting of the traffic
which takes place among the citizens of the same state,
— or external, which consists in that subsisting with for-
eign nations. The more extensive a state is, of the more
value to it commonly is its internal commerce, if it pos-
sesses the means of a convenient interchange of commo-
dities through seas, rivers, or canals, and the less does its
prosperity depend on foreign traffic. This is an advan-
tage which the United States may possess in an eminent
degree, extended as they are through various climes, and
intersected by numerous rivers, if they are wise enough
to preserve their union, and liberal enough to favor and
assist, without jealousy, the natural advantages enjoyed
by each, which may ultimately redound to the benefit of
the whole, and of every part.

Sil

Free states whose territories are small, and manners
simple, if conveniently posited to enter into the career of
trade, are generally inclined to undertake an economical
commerce ; that is, to become carriers for the rest of the
world who either need, or are willing to receive, the aid
of their ships. In this species of commercial intercourse,
it is the interest of an economical republic to consider the
wants and the superfluities of all nations, and to avail
itself of both. This species of commerce can be main-
tained, only by the smallness of its profits. It exists
by underselling others. Its present gains are small ; but
by gaining constantly, and drawing its resources from
every quarter of the world, the idtimate profit to the na-
tion may be great.

Civil liberty is absolutely necessary to the existence of
a flourishing commerce. Freedom is the nurse of industry
and enterprize ; and in the bosom of liberty alone is the
property of the merchant, at all times, sufficiently secure
from the grasp of power. In absolute monarchies, the
humble and industrious occupations of the merchant are
held in contempt by the superior orders of society. But
under the protection of a free government, merchants
have been found capable of the grandest enterprizes.*

* The tendency of commerce is to create civility and refine-
ment of manners, by opening a free and liberal intercourse
-among all nations ; at the same time, it begets a certain spirit of

3i2

The laws and spirit of a nation should annex a dignity
and respectability to the character and profession of a
merchant in order to favor the success of trade.

Those laws are founded in good policy which encourage
trade with wealthy and pacific nations who can take the
greatest quantity of our produce or manufactures on the
best terras ; or who can furnish their own merchandizes
at .the cheapest rates, and take the largest proportion of
ours in return.

Laws are impolitic which attempt to restrict trade to
particular nations, unless it he for a time, with a view to
compel advantages from others which are unreasonably
withheld. Competition alone can establish the just rates
of merchandizes, and reduce the profits of trade to the
most equitable standard.

exact justice, and habitual calculation of interest, which is un-
friendly to the highest polish and ease of social manners, and to
the hospitable reception of strangers, except where some inte-
rest recommends their admission. It deserves, however, to be
remarked, in order to take off the unjust prejudices which are
apt to be entertained by different people against one another,
on the score of their reception abroad, that hospitality, and in-
deed all other national virtues, or defects, arise, not from the
differences between nations as they are men, but as they are af-
fected by the stale of society. The characters of men are formed
by the circumstances in which they are placed. And those na-
tions who entertain the greatest contempt for each others man-
ners, would, with exchange of situations, exchange characters.

343

The institution of banks, when properly restricted, is
beneficial to trade, by facilitating a reasonable credit to
merchants, by which they are enabled to encourage in-
dustry, and to extend the useful cnterprizes of commerce.*
On the other hand, the multiplication of banks beyond
the real necessities of trade, or unsupported by an ade-
quate capital of bullion, becomes a pernicious evil, by
augmenting unduly an artificial medium of trade, and
thereby increasing the price of labor, and of all com-
modities in the market, and at length defrauding the
eredit which had been reposed in them.

The incorporation of exclusive companies of merchants
for managing, and enjoying the sole benefit of any partic-
ular branch of commerce, is contrary to the rules of good
policy, unless the commerce be of such magnitude, and
attended with such expense and risks, that it cannot be
advantageously pursued by individuals. When such a case
occurs, the privilege of entering into the company ought
to be extended as far as possible. Another important re-
quisite is, that the charter of incorporation should be limi-
ted to a convenient term of years, in such manner that
the earliest opportunity may be embraced for throwing

* For a clear and concise elucidation of the nature and effects
of banking systems, I cannot refer you to a more useful work
than a small treatise by Dr Erick Bollman of Philadelphia,
entitled Paragraphs on Banks.

open the trade, and extending its privileges. — The Eng-
lish East-India company have held a monopoly of the
trade of the Indies too long for the benefit of the nation.

Commerce ought to he as free as the ocean on which it
is borne, or the winds which waft it. The interest of
merchants will always find the most profitable channels
of trade better than the foresight of the legislator. There
may frequently, however, exist a necessity for his inter-
ference to secure those privileges of trade to his nation
of which the caprice, or policy of others may be inclined
to deprive it. Each nation possessing the control over its
own commerce may frequently subject foreigners to in-
convenient restraints in their intercourse with it. Hence
the utility of commercial treaties with those states whose
wrong policy may incline, and whose situation may ena-
ble them, without the intervention of such contracts, to
impose peculiar disadvantages, on some branches of
commerce, or to subject it to entire interdictions. But
the general maxim that trade ought to be free, and com-
mitted almost wholly to the guardianship and direction of
the interested vigilance of the merchant, is not inconsist-
ent with another principle, that the policy of a nation
may sometimes wisely impose certain restrictions dictated
by the spirit of commerce itself in order to introduce a
new, or to tbsler a growing manufacture. On this prin-
ciple the exportation of wool, which had formerly been

353

some known and general principles of equity to which,
by the tacit consent of custom, or the explicit stipulations
of treaty, they should agree to submit in their conduct to-
wards one another.

On this subject, there naturally arise two important
questions : — In the first place, are there any such princi-
ples which have been acknowledged to be obligatory on
all nations ? — and, in the next place, — by what authority
are they prescribed ? and by what sanction enforced ?

In answer to the former question ; it has already been
observed, that independent nations may justly be viewed
as standing in the same relations to one another, as inde-
pendent individuals, previously to the existence of civil
society, possessing the same rights, and subject to the
same obligations. This state has been denominated the
state of nature. And these rights and obligations consti-
tute the basis of the law of nature. But because indi-
viduals are rarely, if ever, found actually existing in this
state, and its laws are almost exclusively applicable to
mankind in their national capacities, hence the additional
title has been given to it of the law of nations.

The most rude and barbarous people have not been

without some rules, to ascertain the several rights, and

regulate the mutual intercourse of their respective tribes.
vol. ii. t v

3d*

But it is only among civilized nations whose manners
and political institutions nearly resemble one another,
and who have been long connected together by the most
liberal intercourse, mutually imparting their improve-
ments in letters and in arts, that any regular and entire
code can be expected on this subject. Indeed, it is only in
modern times, and among the enlightened nations of
Europe, that this law has taken the form of a science.
Among the ancients, with whom stranger and enemy were
almost synonymous terms, it was hardly known, till the
latter ages of the Roman empire. The civil law was, at
that period, brought to a state of high perfection : and
some, although, as yet, but imperfect, principles of the
law of nations were acknowledged as forming apart of the
doctrines of natural reason.

In modern Europe, the diffusion of letters, the refine-
ment of manners, the influence of religion, and a spirit of
humanity resulting from a combination of all these causes,
together with ideas and interests arising out of the most
enlarged commercial intercourse which has ever existed
in the world, have contributed to give an extension, and
perfection to the law of nature and nations which it had
never before attained. Grotius has the honor of leading
the way on this important subject, in his treatise dejure
helli et pads. After him his commentator Barbeyrac,
Burlamaqui, Puffendorf, Wolfius, Vattel, Van Bynker-

355

shoeck, have acquired the highest reputation, and have
become authorities to which even nations have conde-
scended to appeal in the decision of their controversies.
They have left little to be desired in the science. And in
the respect paid to the writings of these illustrious men,
we have often seen the pride of power stoop to the illumi-
nation and persuasion of wisdom.

To the second enquiry, by what authority is the law of
nature and nations prescribed ? and by what sanction is
it enforced on independent communities ? — I answer, — It
is prescribed by custom, and the implicit or positive con-
sent of all the nations of Europe, and to these we may
now add the United States of America, and the European
dependencies in the East and West Indies, who have all
agreed to submit nearly to the same rules.

In this age of refinement, and literature, learning has
shed such an extensive illumination through society, and
learned men have acquired such preponderance, that
their opinions have become, in a great measure, a stand-
ard of civil and national policy, and, in many respects, a
laic to princes and states. Their authority is resorted to,
and often admitted as decisive in the determination of con-
troversies between the most powerful kingdoms. But be-
sides this indirect authority, the greater part of the prin-
ciples of the law of nature and nations, as they have been

356

proposed and illustrated by the most eminent political
philosophers, have, within a short period, been explicitly
reeognized in the public treaties of Europe. Principles
thus recognized receive the sanction and force of positive
laws. Others which have been admitted only by long
custom, compose the implicit, or what Vattel calls the
necessary law of nations. Of these laws the natural sanc-
tion is national convenience ; or, if they are infringed, the
fear of the just resentment of other nations. Fairness,
justice, and good faith, are not less the public interest of
states, than the private advantage of individuals. Injus-
tice and falsehood may profit for a moment ; but, in the
end, are ever found to be injurious to the true interests of
the great communities of mankind.

DIVISION OF THE IAW OF NATURE AND nXStIONS.

The law of nature and nations does not respect the in-
ternal policy, or institutions of state ; but is occupied only
with their external rights, and obligations, in their rela-
tions with other states. These relations are threefold — of
peace — of war — and of neutrality. This law is according-
ly divided into three parts — the first containing rules and
principles relative to a state of peace — the second, rules
and principles relative to a state of war — and the last,
those which relate to a state of neutrality. On each of
these subjects, all that I can propose to you is to give

H57

some openings to llie science in the prosecution of your
future studies.

OF RULES AND PRINCIPLES RELATIVE TO A STATE OP
PEACE.

These principles respect chiefly the independence and
equality of nations in their right of ahsolute control over
their own political arrangements, — the extent of their
several jurisdictions,— their privileges or intercourse and
commerce with one another, — and, finally, their mutual
rights of embassy and representation.

The independence of states, and their equality in rights
and privileges, lies at the foundation of the law of nations.
And this perhaps is a proof that this law, which is of so
modern a date, has taken its origin among nations which,
in fact, are nearly equal in geographical extent, and in
physical power. For it is unhappily true in the history of
nations, that the justest claims are seldom conceded by
such powerful bodies, to equity alone, when they possess
force sufficient to violate them with impunity.

The rights which result from the principle of the in-
dependence and equality of states suffer no change, on ac-
count of their greater or less degree of population, wealth,
or territorial extent. Among these rights the most im-
portant is that of establishing, or preserving in perfect
integrity, their own forms of civil policy, free from the

358

control, or interference of any other power. No right can
be more precious to a nation. All attempts, therefore, to
modify or change an existing government ; or to prevent
a nation, when it pleases, to alter, amend, or change its
own system, under any pretence, that such change is in-
consistent with the interest of any neighboring power, is
a palpable violation of the most sacred rights of nations.

The same principle condemns the intriguing of foreign-
ers with parties which may spring up within a state. And
condemns still more forcibly the affording any encourage-
ment or aid to a factious portion of the citizens to op-
pose, or disturb the existing order of the government un-
der which they live. — On this ground, the world has so
justly and strongly reprobated the conduct of the empress
of Russia, the emperor of Germany, and the king of Prus-
sia for their unwarantable interference in the affairs of
Poland ; and especially for their atrocious dismember-
ment of that republic, and afterwards presuming to
dictate a form of government for the remaining provinces
without the consent of the people who were to be affected
by it. The ancient Romans were infamous for intermed-
dling in the internal disturbances of the neighboring na-
tions, till they had broken, in succession, and overturned
the independence of every kingdom, and republic within
the reach of their arms. On the same principle, the at-
tempt of the combined powers of Europe to prescribe a

359

government to France, although it was in the most turbu-
lent period of her frenzy, and their ostensible motive was,
in part, their own preservation, was most justly reprehen-
sible. And they have since been reaping the fruits of
their folly ; having forced her into the career of foreign
conquest, of which they themselves have become the vic-
tims, instead of leaving her, as they ought to have done,
to spend her fury, and the unnatural force of her insani-
ty on her own limbs.

The principles, however, which have been just laid
down, do not prohibit one state, in certain circumstances,
from yielding succors to another, which is oppressed by
its government, or which, on the other hand, is afflicted
by a dangerous insurrection. Yet this case requires the
most profound consideration, and the most dispassionate
circumspection, lest, under the pretence of assisting a na-
tion in her affliction, a faction only should be cherished,
or a tyranny protected.

"When civil dissentions exist in a state a principle of
good neighborhood, and of justice, requires that no aid
should be afforded by a foreign power to any party, un-
less it is clearly known to embrace an undoubted majori-
ty of the people, who are organized in such a manner as
to afford a reasonable prospect of their being able to main-
tain their government $ or, unless there is the strongest

360

ground to believe that those suecors, and the change that
is aimed to be effected by them, will contribute to the
happiness, and meet the approbation of the nation when
restored to a state of tranquility. For those moral con-
siderations ought to be felt to be as obligatory on nations
as on individuals.

On such principles Ave vindicate the aids granted by
France and received by the people of America during the
conflicts of that revolution which ultimately established
the liberties and independence of the nation.

From the independence and equality of nations results,
in the next place, the right of using their own resources
and advantages, according to their pleasure for their own
interest, provided that, in pursuing these interests, they
do not infringe upon the equal rights of others. They
have a right to admit one nation to the participation of
greater privileges, within their territories, than another j
and reciprocally to yield and take such advantages as they
conceive to be most for their own benefit, which use of
their rights ought not to afford to those from whom they
are withheld, any just cause of offence. For this purpose,
they may enter into alliances, and form national conven-
tions and treaties with other states, which may materi-
ally alter the relations formerly existing between them,
and mutually create new rights and obligations. Such

361

national compacts, when once made under the proper au-
thorities, impose duties, and create rights of the most sa-
cred and inviolable nature. They cannot justly be an-
nulled, or altered at the supposed interest, or convenience
of one of the parties ; but require, for the purpose of any
modification or change, the clear and explicit consent of
all who were engaged in the original contract. And if
any doubt or uncertainty arise in their interpretation, jus-
tice requires that the most fair and obvious exposition
be given to their terms ; in which a candid and equitable
spirit will derive great assistance from considering the ob-
jects originally proposed by the parties to be respectively
accomplished by the treaty ; the evils to be corrected, or
the advantages to be gained.

In the United States treaties concluded by the Presi-
dent and Senate are made the supreme law of the land.
The national judiciary is, consequently, charged with
their interpretation, and furnishing the rule for their exe-
cution within the jurisdiction of the states. This is a mea-
sure fraught with the greatest wisdom and equity ; and
peculiarly calculated, as far as depends on the United
States, to preserve these important conventional laws from
infractions occasioned by ignorance, injustice, or ambi-
tion.

It has been made a serious question in the law of na-
tions, whether or not a revolution in the government of
vol. ii. z z

;}62

any people ought hi justice to annul the obligation of a
treaty contracted under the preceding government ?— .It
is sufficient to reply that a treaty is a convention made
with the nation, and not with the men who may, at any
time, have the powers of government in their hands.
These are only the organs by which one political body
communicates with another. The organ of their inter-
course may be changed, while their conventions retain all
their validity ; except where some palpable disingenuous-
ncss, mistake, or fraud, appears in the conduct of one, or
of both the parties.

OF THE EXTENT OF THE JURISDICTION OF STATES.

The jurisdiction of a state extends as far as the limits
of its territory, and over all rivers, lakes, and bays in-
cluded within those bounds. The territorial limits of
countries have been fixed by custom, and conven-
tion with neighboring powers. In taking possession of
new and uncultivated regions, and exercising or claiming
jurisdiction over them, the principle of convenience, as
formerly explained, must be regarded ,• and treaties with
other powers who occupy portions of the same lands,
must ultimately fix their respective limits. — If any waters
be encompassed by the territory of any state, the jurisdic-
tion of that state, extends equally over both the water,
and the land. — If a river or a bay form the boundary or

part of the boundary between two states, it ought to be
considered, as far as it extends, as a natural high way, in
which, consequently, the navigation should be free, and
common to both nations ; unless otherwise restricted, or
appropriated by explicit treaty. If a river be divided be-
tween the territories of two nations, so that the one inclo-
ses its mouth, and the other embraces the heads of the
same stream, the dictates of reason evidently require that
the navigation of the whole should be equally open to
those who inhabit the superior, or the inferior part of the
channel, each giving to the other sufficient national
pledges for their mutual security, and for the peaceable
and friendly use of that liberty.

Another question which has occupied the civilians of
Europe with no small degree of zeal for more than a
century past, regards the extent of jurisdiction which
may be exercised by any state over the open ocean. Some
nations, on account of their great maritime superiority,
or, on pretence of providing for the safety of their com-
merce, or their dominions, have advanced claims to pre-
eminent control over particular seas. Great-Brilain has
pushed her demands farther than any other nation ; and,
by the haughtiness with which they have been urged, has
raised to herself many enemies. The ideas of mankind,
on this subject, however, have, for a considerable time,
been growing move just and liberal. The ocean is re-

36*

garded, by most writers, as the universal highway of na-
ture, and equally free for the use of all nations. Yet, as
every state is justly expected to extend its protection
against all hostile aggressions, not only to its subjects,
and friends, but even to strangers within the control of
its power, its jurisdiction is admitted to extend into the
sea as far as the force of its arms can reach. And this
limit, since the invention and use of fire-arms, has been
generally interpreted to mean, the ordinary range of
cannon shot. The United States of America, that there
may be no uncertainty in a boundary which might other-
wise be too vague, have fixed it at one marine league from
the shore.

OF THE INTERCOURSE AND COMMERCE OF NATIONS.

As the law of nations is founded on the natural obliga-
tions of mankind, and the actual desire among all civilized
people, of extending as far as possible the ties, and good
offices of humanity, as well as to promote their mutual
interests, the privileges of intercourse and commerce be-
tween all the various states of the world should be ren-
dered as liberal, and extensive as is consistent with their
common safety.

Strangers cannot claim admission into a foreign state,
by the law of nations, as a perfect right ; \ct, agreeably to
the ben. volence of that law, the privilege ought not to be

363

refused to any where it is not likely to be abused or at-
tended with national danger. But when a stranger is ad-
mitted into any nation, reason and humanity require that
he should be considered by the same act as taken under
its protection. His property, as well as his personal
safety, is deemed to be under the guardianship of the
power and justice of its laws. He still retains the right
to dispose of it as he pleases ; or, if he dies within the ju-
risdiction of that foreign state, a benevolent justice seems
to require that it should be preserved under the safeguard
of the public authority, and restored to the requisition of
the government of his native country.*

It is an obvious principle in this code, in the next place,
that, if a stranger in a foreign country enjoys the pro-
tection, he is also subject to the control, of its laws.
During his residence, it is his duty to demean himself as
a good and peaceable citizen, and orderly subject. And
if, in any thing, he offends against this rule, he shall be
subjected to the penalties of the law, as if he were a native.
If there be strong and well supported suspicions of his
abusing the privilege of a stranger to any hostile, or un-
friendly purpose, such as attempting to excite disaffection

* For a long time these rights were little understood in Eu-
rope, and were hardly known in the rest of the world. Even till
very late years the droit d'aubain, as it was called, remained a
stain on the humanity of France

366

to the existing government, or taking plans or charts of
their sea coasts, or their strong places, for the use of an
enemy, he may, without violating the rights of hospitality,
be required immediately to depart from the country, or,
under a safe conduct, be sent beyond its limits.

It is worthy of particular observation, with regard to
the privileges of intercourse for the purposes of com-
merce, that it is, generally, the interest of all states to
render the ingress and egress of fair traders as easy, and
secure as possible. Yet nations have frequently, from
some idea, whether true, or false, of the advantage of
encouraging one species of commerce, or the com-
merce of one nation, in preference to another, imposed
narrow and exclusive regulations on their commer-
cial intercourse. When this is the case, other na-
tions must submit to the restrictions, however absurd,
which each thinks fit to prescribe for itself; if they can-
not, by some conventional agreement, procure a more fa-
vorable state of things. Hence those numerous commercial
treaties which form so large a portion of the positive, or
diplomatic law of nations, in the modern states and king-
doms of Europe.

OF AMBASSADORS, OR NATIONAL REPRESENTATIVES.

The fourth class of laws relative to a state of peace,
respects the rights of embassy, or national representation.
From the first ages of civilized society the convenience of

367

nations has given rise to a class of men residing near
foreign courts as their representatives ; through whom
such communications might he made, or propositions re-
ceived as go to affect the interest of those by whom they
are sent.

On this subject the following principles are universally
admitted. The ambassador of an independent nation pos-
sesses within that country to which he has been received,
all the independent rights of the nation which he repre-
sents.— His person, of consequence, is sacred, and invio-
lable— He is not amenable to the civil, or criminal juris-
diction of the state within which he resides. — Yet, if
he should so far forget the rights of the nation as to in-
sult its government, — to intrigue with its parties, — to
contravene its laws, — or to attempt to foment sedition or
insurrection, the government whose displeasure he has
incurred may apply to that whose representative he is,
with a request that he may be recalled : and it shall
be the duty of such state, if it be disposed to preserve the
relations of amity and friendship subsisting between them,
to reeal him. — There are certain cases in which the ex-
igency of affairs may require that he be immediately or-
dered to quit the territories which he has abused. The
public safety may even demand that his person be confin-
ed. The government, however, which proceeds to such
severe measures, must rely on the justice of the state

368

which sends him, to approve the aet when the cause im-
pelling them to it is understood. Otherwise the sending
away an ambassador, confining his person, or refusing
to receive him in his public character, is construed to be
a proof of hostile intentions, and is generally considered
as a sufficient occasion of proclaiming immediate war.

Any nation possesses a right, on the ground of nation-
al courtesy, to send its representative to reside with
another nation ; nor will the principles of amity and good
neighborhood, permit the latter to refuse admitting him
except on such reasons as have been already explained.

When a nation has been divided into great and power-
ful factions by civil dissention, it may be doubtful in
which party the power and authority of the state is vested.
In such a case, a friendly power may justly refuse to re-
ceive an ambassador from either party till the interior
disorders of the state be composed. Or if it consents to
receive any, prudence seems to require that it should be
from that party which is in actual possession of the gov-
ernment.

Thus have I proposed to you a very brief sketch of the
principal rules which respect nations maintaining towards
each other the relations of peace. In the following lec-
ture I shall, with equal brevity, endeavor to lay down the
most essential principles that should govern their conduct
in the respective states of war, and of neutrality.

>69

LECTURE XXXI.

OF LAWS RELATIVE TO A STATE OF WAR, AND OF NEU-
TRALITY.

The just causes of war. — Of the time and manner of com-
mencing war. — On the means of carrying on war. — Dis-
turbing the peaceable husbandman in the labors of the
field, privateering at sea, confiscating or sequestrating
debts or property in the public funds, seizing vessels in
the harbors at the commencement of a xvar, iniquitous,
and impolitic. — On the method of terminating war. — Of
laivs relative to a state of neutrality. — Of the commerce
of neutral nations. — Of contraband goods. — Of the
goods of an enemy nation on board of neutral vessels.
— Of the right of search. — Of the principle that free
ships should make free goods. — Of the inviolability of
neutral territory. — Two questions, 1. Have vessels of
war aright to bring their prizes into neutral ports and
there expose them to sale ? 2. Have neutral nations a
right to enter into a commerce with a belligerent, ichicli
they did not enjoy in time of peace ?

NATIONS are often necessarily engaged in wars,
through the pride, jealousy, or ambition of foreign pow-
ers. And, not unfrequently, they mistake their own pas-
vox, ii. 3 a

370

sions, and imaginary interests for just and reasonable
causes of war. The organization, therefore, and direction
of the national force, by which they may successfully re-
pel injury, or retaliate aggression, is an important object
of political philosophy.

Nations, even in managing their wars should remember
that they are men. In the causes of their wars, therefore,
they should be just ; and in the conduct of them they
should exercise all the humanity which is consistent
with the nature of the contest, and the end to be attained
by it. The civilization and refinement of modern times
lias tended to extinguish much of that ferocity and
cruelty in the operations of war which were the disgrace
of human nature in the barbarous ages.

On this subject, I shall propose to you a few principles
on the just causes of war ; — on the time and manner of
commencing it ;— on the means of carrying it on; — .and
on the method of terminating it.

OF THE CAUSES OF WAE.

The just causes of war may be stated, in general, to be
the violation of any of the perfect rights of nations.

Inasmuch as all the citizens, or subjects of a state are
considered to be under the protection of its power, and
its laws, any unjust aggressions made on the persons or
property of these, by the authority of another state, or

371

made by the subjects of another state, and refused to be
redressed after proper application made for the purpose
by the government of that nation whose citizens have
been injured, may be deemed a reasonable cause of war.

If a nation is found arming, and putting itself in a
threatening posture of offence, and refuses to desist, or to
give an amicable explanation of its conduct to another
which has probable grounds for apprehending some medi-
tated aggression on its safety, or its rights, this state of
hostile preparation has been held by writers on the law of
nations to be a justifiable cause of war.

OX THE TIME AXD MANXER OF COMMEXdXG WAR.

"War, which is accompanied by so many calamities to
mankind, ought seldom to be undertaken till every pacific
measure has been tried in vain to obtain redress of inju-
ries actually received, or satisfaction with regard to those
dangers which are justly apprehended. One exception,
there is to this principle. When sufficient reason has
been given to believe that all applieation will be fruitless
to a predetermined enemy ; and delay will only be yield-
ing him greater advantages to commence an attack with
success, in such case, the injured party may strike his
blow whenever he finds it most convenient for himself.

Formerly it was customary to precede hostilities by a
public declaration of war, and some nations have aceom-

panied this transaction witli ceremonies of great formal-
if v.* This practice has been growing into disuse among
the nations of Europe. And it is now only necessary that
each state take the most early means of apprizing its own
citizens of the state of hostility in which they are placed.
The people of the United States will always be apprized
of it by the act which engages the nation in war : for it
can be undertaken only in consequence of a solemn decree
of Congress. By this wise provision of our constitution,
the people are defended in the best possible manner, from
the risk of unnecessary wars, which usually spring,
either from the mistaken pride and ambition of princes, or
the inconsiderate passions of a heated populace.

ON THE MEANS OF CARRYING ON WAR.

The means of justifiable hostility and offence, are all
weapons of injury, and methods of compulsion and force,
which can tend most effectually to weaken and subdue an
enemy, and to bring him, at length, to reasonable terms
of pacification. Reparation of injuries, and restoration of
peace upon equitable terms are the legitimate objects of
every just and reasonable war ; and no measures of vio-
lence will be permitted by a magnanimous people which

* The Romans sent a herald to the enemy's borders to de-
mand redress and, if they did not obtain the satisfaction they
expected within thirty days, the herald returned, and hurled a
spear into their territory in token of defiance, or as a denuncia-
tion of hostility.

373

do not directly contribute to these ends. Every mean of in-
spiring terror, or inflicting death in the ardor of battle is
allowable in an enemy. But all unnecessary acts of cru-
elty, such as the use of poisoned weapons, poisoning
springs or provisions, refusing quarters to a vanquished
enemy, or, after laying down their arms, reducing them
to slavery, compelling them to fight against their country,
or oppressing them by a rigorous confinement, are as ab-
horrent from true magnanimity, as from true humanity.

Individuals ought not to be considered as culpable in
any war. They are entitled, therefore, when in our power,
to all possible lenity, and to the exercise of all the ordi-
nary sympathies of humanity. On the same principles,
all devastations committed on the property of unarmed
husbandmen, peaceably pursuing the labors of the field,
are unwarrantable. This is making war on human nature,
not on an enemy. These acts of wanton devastation are
not less unwise, than unjust ; by destroying the means of
subsistence which, in the end, may become necessary to
the destroyers themselves. One exception may be ima-
gined to this rule. AVhen a general has it in his power,
by destroying the provisions of a country, to impede the
dangerous course of a victorious enemy. Such an action,
however, can be justified only on the principle of self-
preservation.

S74

Attacking and plundering, by private vessels of war,
the peaceable merchants of an enemy nation pursuing
their customary and innocent traffic, ought to be con-
demned, on the same grounds. Acts of this kind tend to
involve individuals in distress and ruin, but contribute
little or nothing to impair the public force of the enemy,
or to determine the issue of the war. Some attempts have,
within a few years, been made by different powers to limit,
or put an end to this odious and iniquitous practice. But
those generous nations have uot yet been able to accom-
plish their humane and equitable purposes. And priva-
teering, which, in its principle, is nothing less than the
most cruel and unjust species of plunder and robbery,
still remains, under a few limitations as to the precau-
tions and forms necessary iu commissioning the vessels,
and condemning the prizes, the reproach of the policy,
and humanity of modern times.

A\\ acts by which a state endeavors to revenge on inno-
cent, and unoffending individuals the injustice of their
government, is equally iniquitous and impolitic. There-
fore, confiscating, or sequestrating the property which
foreigners may hold in its public funds, or in the hands
of private debtors, or seizing on the vessels of their mer-
chants which may be in its harbors at the commencement
of a war, instead' of being a justifiable mean of offence, is
a shameful violation of national faith, and honor. These

375

funds were deposited, these debts were contracted, and
these vessels entered its harbors under the protection of
its laws ,• and surely those laws cannot, either with good
faith, or in good policy, be made a decoy for innocent
foreigners who have honored it by confiding in its integ-
rity and justice.

The nations of Europe, by the progressive refinement
of their manners, are gradually mitigating the horrors of
war. And some late treaties, particularly that between
Prussia, and the United States of America, have intro-
duced, on this subject, some of the most amiable and be-
nevolent doctrines of the law of nature and nations. All
the principles which have just been mentioned have been
recognized in that treaty. And we have reason to hope
that such generous efforts in favor of humanity, made
under such high authority, will, in a course of time, tend
to establish these benevolent principles on an immovable
foundation.

ON THE METHOD OF TERMINATING WAE.

When empires are so extensive, as in the eastern quar-
ter of the globe, that the ideas of a balance of power
among its several nations cannot easily be framed, or
realized, force alone generally impels, or limits the ac-
tions of despots. If war is terminated by conquest, which
frequently happens, the victor has tjhen an option, accord-

ing to the maxims which usually govern such states, of
four possible ways of using his power ; the first to exter-
minate the inhabitants ; the second to reduce them to
slavery. In both these cases the vacant lands are usually
replenished by new subjects drawn from other parts of
his dominions. In the third place, he may spare the
people, only changing entirely their laws, institutions,
and rulers, and subjecting them immediately to his own
authority. Or, finally, he may suffer them to enjoy their
laws, and their ancient customs j but, annexing them to
the body of his empire, may impose upon them a perpetual
tribute. The two former of these methods nothing can
justify but power. The last is the most equitable, and,
even for a despot, the part of the wisest policy.

But, where reason and policy preside at the termina-
tion of a war between independent nations, hostilities
should be closed by treaty. And on this subject, the fol-
lowing principles ought sacredly to be respected. In
order to facilitate propositions for peace, flags should be
free, and the persons of those who bear them, inviolable.
— All armistices ought to be proposed, and observed with
perfect good faith. — If the injured nation, should prove
superior in the war, she can only reasonably demand re-
paration for the injuries she has suffered, and indemnifi-
cation, perhaps, for the expenses she has iueurred in pur-
suing redress. ^Yhere a nation has discovered any peculiar

377

restlessness of disposition, and manifests an inclination,
as well as possesses the power to disturb her neighbors,
extraordinary securities may justly be demanded of her,
for her future pacific intentions. On this principle cau-
tionary fortresses within her territory may sometimes be
required to be delivered up, to be garrisoned by the
troops of the injured nation, or of some friendly and
allied power, as a more effectual guard against future
and sudden infractions of the present peace.

To the disgrace of human nature, reasonable terms of
accommodation are hardly to be expected, except where
nations are so nearly equal in strength, either by them-
selves, or their alliances, that equitable compromise is
preferable to prolonged and fruitless contest; or where,
on the other hand, they are surrounded by nations who
have formed to themselves such a system, and balance
of poivcr, that they find a common interest in not suffer-
ing any one state to acquire too great a superiority over
another, and too great a preponderance in the general
scale.

We are prone to flatter the age in which we live on its
superior advances in wisdom and virtue. But the im-
provements which have recently been introduced into the
law of nations in Europe, and the reason which has pre-
sided in the treaties of her different powers, for more

vol. ii. 3 b

378

than a century past, lias been the result of their equality
of force, and of the peculiar relations which have sprung
out of their artificial adjustments of the balance of
power, as much as of their progress either in science, or
humanity.*

OF LAWS RELATIVE TO A STATE OF NEUTRALITY.

The rights and duties of neutral states form an im-
portant branch of the law of nations. It is particularly
interesting to the United States of America while they
hold their present relations to the other nations of the
world. And it were much to be desired that we might
always have enlightened statesmen wise enough to un-
derstand, and firm and prudent enough to maintain them.

The first duty of a neutral power, in any existing war,
is to observe a perfect impartiality of conduct towards
the nations which may be embarked in it.

This principle does not preclude a neutral from fulfill-
ing, with good faith, the stipulations of pre-existing
treaties, binding her to any definite supplies to be fur-
nished to either of the parties at war. And complying
with such engagements ought not to interrupt the amity

* Of this fact Bonaparte has given the world the most strik-
ing evidence since he has been able to break the European
balance ol power, and acquire for himself such a decided pre-
ponderance in the scale of empire.

379

subsisting between the neutral, and the opposite belliger-
ent power;* unless the stipulated supplies go to such.
extent as, by reasonable construction, to destroy her
right to the privileges of neutrality, and render her, in
fact, a party in the war.

Van FJynkershoek and Yattel have both proposed a
limitation to this principle, maintaining that if a Avar be
manifestly unjust on the part of a nation to which cer-
tain succors have been stipulated, the stipulation is, by
that circumstance, rendered void. In all other cases they
contend for its obligation This decision of these emi-
nent writers seenjs to lay a foundation for a very lax
national morality. If it is lawful for a nation to judge of
the justice of the cause of another, with whom she has
federal engagements, before she is obliged to fulfil them,
it were as well they had not been contracted. Where a
government has an interest to decline complying with its
engagements, it is not difficult to find reasons to justify
its refusal. A wise people will always be cautious with

* A late example of this doctrine happened in the war be-
tween Russia and Sweden. [A. D. 1788] Denmark was bound
by previous treaty to furnish to Russia a certain number of ships
and troops. This stipulation she accordingly fu, filled without
breaking her friendship with Sweden. Yet such treaties are
generally dangerous in the issue, and ought rarely, if ever, to
be entered into, except between nations who find it necessary
for their common safety to form such reciprocal leagues.

380

regard to the obligations which they assume, and leav«
themselves at liberty, in the very terms of them, not to
aid injustice. It is difficult for one people to estimate,
■with certainty, the justice of a -war in which another may
be involved. And a neutral nation has no right to pro-
nounce upon the subject, or to discover by its conduct
towards the parties, that it condemns the one, or justifies
the other.

OF THE COMMERCE OF NEUTRAL NATIONS.

The citizens of a neutral state have a right to pursue a
free aud unmolested commerce with all countries, whether
belligerent, or others. Nor is there any exception to this
right, except with regard to military and naval stores in-
tended for an enemy, or provisions going to a place that
is actually besieged or blockaded. These prohibited arti-
cles are usually enumerated in treaties under the title of
contraband.

The right of seizing, and confiscating contraband mer-
chandize is connected with another right exercised by the
ships of war of the belligerents, of stopping neutral ves-
sels in their voyage, and detaining them for search. But
because this right, when most prudently used, is necessa-
rily vexatious and often highly injurious to the fair trader,
it must be exercised at the peril of those who search ;
that is, if no contraband goods are found, those who have

381

presumed to interrupt a voyage, are made liable for all
damages committed in the exercise of this right, and for
all losses that shall result from the detention of the mer-
chant.

Kot only the goods denominated contraband, but all
property of the enemy discovered on board of a neutral
Yessel? has hitherto, by the law of nations, been made
liable to seizure. But this principle has often become the
source of so many abuses, and is always attended with so
much vexation to the fair trader, that some nations have,
with great reason, attempted, in their late treaties, to
correct the evil, by making the vessels of the contracting
powers, when one may happen to be in the relation of
neutrality, at the same time that the other is engaged in
war, a sufficient protection to the freight universally. In
whatever countries these treaties exist they form so many
positive laws, in amendment of what has hitherto been
acknowledged as the law of nature and nations on the
subject. And happy would it be for the interests of the
commercial world, and not unfavorable to the objects of
legitimate warfare, if the principle were adopted by all
nations that neutral bottoms shall be deemed a sufficient
protection to the property which they convey.*

* The celebrated marine ordonnances of France issued 1681,
amended in 1694 and 1704, and perfected in 1744, are calculated
to ascertain by the best and clearest rules that ever were pub-
lished, the genuineness of neutral vessels, and their cargoes.

382

A principle immediately connected with the preceding,
in the law of nations, as it is now generally understood,
is that the property of neutrals shall he free in the vessels
of an enemy. For they have a right to make use of the
assistance of their friends without fearing that it shall
operate to their disadvantage.

Another acknowledged principle in this code is that
neutral powers have the right, and are under obligation,
to preserve their territories inviolate not only from the
encroachments of those who are actually engaged in war,
but from being used for any purpose of convenience against
their enemies. And it is correspondent^ the duty of all
belligerents to respect the limits of neutral jurisdiction.
Within these limits an enemy cannot lawfully be attacked,
nor a capture lawfully be made. If any such act of hos-
tility is committed, it is incumbent on the neutral power
to demand satisfaction from the aggressor, and to procure
redress for those who have been injured while under its
protection, or within its jurisdiction.

Some jurists have made one exception to this principle.
If the vessel of an enemy has been attacked in the open
sea, and flees for shelter within the jurisdiction of a neu-
tral power, they maintain that the victor, in the ardor of
contest, may pursue her within neutral limits, and capture
her, provided there has been no intermission of the battle,

383

or pursuit ; or, as Van Bynkcrshoek expresses himself,
dunifervet opiis. This is an exception which will be found
very dangerous in practice. And the United States have
judged better, who have given the cognizance of all cap-
tures made within their jurisdiction, to the district courts.
But no vessel should be permitted to take refuge in a
neutral harbor with the view of making preparations
there to renew the contest. And, generally, all military
equipments, or naval armaments made by any belligerent
powers within the jurisdiction of neutrals, are contrary
to the rights of neutrality. If a vessel of war, having
suffered damages at sea, has been forced, by stress of
weather, into the harbor of a neutral nation, she may be
permitted to repair those damages ; but must depart
without making any other equipment.

A neutral nation may rightfully prohibit all vessels of
war entering her harbors, if she conceives the general
interests of her peace and safety require it, except when,
compelled by the dangers of the sea, they find themselves
obliged to take refuge within them for a short, and limited
time. If no such prohibition exists, vessels of force, as
well as merchant ships belonging to different powers at
w ar may, consistently with the law of nations, use the
harbors of a neutral state as an assylum in cases of immi-
nent danger, or as convenient stages of refreshment in
long and hazardous voyages. But, in no case shall thev

38*

be permitted to use this right merely for the purpose of
lying in wait for their enemy, or gaining a favorable op-
portunity to attack him with advantage.

In order the more effectually to preserve an impartial
neutrality, and to save the rights of assylum and hospital-
ity from being abused to subserve any hostile purpose,
the United States have wisely ordained that, if any armed
vessel belonging to a belligerent nation, depart from any
harbor within the limits of these States, no armed vessel
belonging to a hostile power, being within the same har-
bor at the time, shall depart until twenty-four hours after
the former : otherwise she shall be deemed to have vio-
lated the law of nations.

Two questions remain to be decided on this subject ;
the first is, have the citizens or subjects of belligerent
states a right to bring their prizes into neutral ports, and
expose them there to sale ? — And the second ,• has a neu-
tral nation a right to enter into a commerce with one of
the belligerents, in time of war, to which she had not been
admitted in time of peace ?

To the former of these questions, I answer that a neu-
tral ought equally to grant or refuse the privilege to all
the powers at war ; unless she is already bound to some
certain rule of conduct on the subject in pre-existing
treaties. If she has not antecedently laid herself under

S8S

any obligation, the safest rule is to refuse the privilege to
all. Mr Valin, in his commentaire sur Vordonnance de la
marine du 1681, tome 2. 2752 — 277, asserts iu strong and
positive terms, that an impartial neutrality forbids not
only the selling of prizes in a neutral port, but even the
introduction of them, except it be through stress of
weather, and as long as that stress continues ; or for
some convenience in navigation, in which case, they
ought not to be permitted to remain longer than twenty-
four hours; that being a sufficient time to fulfil all the
necessary purposes of mere convenience. M As neutrali-
ty, says he, towards two nations at war does not permit
us to favor ojie, to the prejudice of the other, in order to
conciliate this object with the right of assylum, nations
have tacitly agreed, ami custom has rendered it a common
right, that an assylum should be given to foreign vessels
of war, with their prizes — that is to say, if they have
entered a port, being forced by a tempest, and as long as
the tempestuous weather will not permit them again to
put out to sea; — but only for twenty-four hours, if they
have entered for any other cause. — Excepting the case of
a tempest, if vessels are in a condition to sail, the neutral
power is under an obligation to cause them to depart
within twenty-four hours ; otherwise it would be a viola-
tion of its neutrality. These observations, he adds, re-
gard only vessels of war, with their prizes, and not those
vox. ii. 3 c

3U

vessels which, without prizes, take refuge in a neutral
harbor from the pursuit of an enemy, or enter it for any
other cause.'*

To the second question I reply, that independent na-
tions always possess the right of making commercial
arrangements with one another, whether in time of peace,
or of war ; these arrangements, however, being subject
to those just restrictions which have been already pointed
out, and admitted to take place in neutral trade, in time
of war. The English nation, indeed, in the confidence of
their great maritime power, have denied this right, under
the pretence, that it is covering the property of an enemy
under the privileges of a neutral commerce.*

Finally, as fho spirit nf* onmrnprpo tends in a great

degree to mitigate the ferocity of war, and so many im-
provements have, by this means, been actually introduced
into the former barbarous code, during the last two
centuries, the extension of neutral privileges will be
found to contribute to the interest and happiness of man-
kind.— They merit the attentive study, and the firm
support of every American statesman.

* Lord Hawkesbury's discourse on the conduct of Great Britair.
in respect to neutral nations — page 18.

END OF THE SECOND VOLUME.

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