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THE

PRINCIPLES

OE"

MORAL AND POLITICAL

PHILOSOPHY,

» BY WILLIAM PALEY, D. D.

" SUBDEAN OF LINCOLN, PREBENDARY OF ST. PAUl's, ANI) RECTOR OF BISHOP-WEARMOUTH.

ELEVENTH AMERICAN EDITION.

BOSTON : PUBLISHED BY RICHARDSON AND LORD,

1825.

TO THE

RIGHT REVEREND

EBMUJ^D LJiW, n.D,

LORD BISHOP OF CARLISLE.

My Lord,

HAD the obligations wliich I owe to youi Lordship's kindness been much less, or much fewer than they are ; had personal gratitude left any place in my mind for deliberation or for inquiry ; in se- lecting a name which every reader might confess to be prefixed with propriety to a work, that, in many of its parts, bears no obscure relation to the general principles of nature and revealed religion, I should have found myself directed by many considerations to that of the Bishop of Carlisle. A long life spent in the most interesting of all human pursuits, — the investigation of moral and religious truth, — in con- stant and unwearied endeavours to advance the dis- covery, communication, and success of both ; a life so occupied, and arrived at that period which ren- ders every life venerable, commands respect by a title which no virtuous mind will dispute, which no mind sensible of the importance of these studies td the supreme concernments of mankind will not re-

iv DEDICATION.

joice to sec acktiowledged. Whatever difference, or whatever opposition, some who peruse your Lord- ship's writings may perceive between your conclu- sions a4ul their own, the good and wise of all per- suasions will revere that industry, which has for its object the illustration or defence of our common Christianity. Your Lordship's researches have never lost sight of one purpose, namely, to recover the simplicity of the Gospel from beneath that load of unauthorized additions, which the ignorance of some ages, and the learning of others, the supersti- tion of weak, and the craft of designing men, have (unhappily for its interest) heaped upon it. x\nd this purpose, I am convinced, was dictated by the purest motive; by a'firm, and, I think, a just opin- ion, that whatever renders religion more rational, renders it more credible ; that he who, by a dilligent and faithful examination of the original records, dis- misses from the system one article which cmitradicts the apprehension, the experience, or the reasoning of mankind, does more towards recommending the belief, and, with the belief, the influence of Chris- tianity, to the understandings and consciences of sc- lious inquiries, and through them to universal re- ception and authority, than can be effected by a thousand contenders for creeds and ordinances of human establishment.

When the doctrine of Transubstantiatiou had taken possession of tiie Christian world, it was not without the industry of learned men that it c^me at

t

DEDICATION. v

length to be discovered, that no such doctrine was coiitained in the New Testament. But had those excellent persons done nothing more by their dis- covery, than abolished an innocent superstition, or changed some directions in the ceremonial of public worship, they had merited little of that veneration, with which the gratitude of Protestant Churches re- members their services. A¥hat they did for man- kind was this : they exonerated Christianity of a weight which sunk it. If indolence or timidity had checked these exertions, or suppressed the fruit and publication of these inquiries, is it too much to af- firm, that infidelity would at this day have been universal ?

I do not mean, my Lord, by the mention of this example to insinuate, that any popular opinion which your Lordship may have encountered, ought to be compared with Transubstantiation, or that the assurance with which we reject that extravagant ab- surdity is attainable in the controversies in which your Lordship has been engaged ; but I mean, by calling to mind those great reformers of the public faith, to observe, or rather to express my own per- suasion, that to restore the purity, is most effectual- ly to promote the progress of Christianity and that the same virtuous motive which hath sanctified their labours, suggested yours. At a time when some men appear not to perceive any good, and others to suspect an evil tendency, in tliat spirit of examina- tion and research which is gone forth in Christian

VI DEDICATION.

countries, this testimony is become due, not only to the probity of your Lordship's views, but to the general cause of intellectual and religious liberty.

That your Lordship's life may be prolonged in health and honour; that it may afford whilst it con- tinues an instructive proof, how serene and easy old age can be made by the memory of important and well-intended labours, by tlie possession of public and deserved esteem, by the presence of many grate- ful relatives ; above all, by the resources of religion, by an unshaken confidence in the designs of a ^' faithful Creator," and a settled trust in the truth and in the promises of Christianity, is tlie fervent prayer of,

My Lord,

Your r^ordship's dutiful, Most obliged.

And most devoted servant, WILLIAM PALKY.

Carlisle, Feb. 10, 1785.

CONTENTS.

Preface , H

BOOK I.

PRELIMINARY CONSIDERATIONS.

Chap. 1. Definition and use of the Science 21

2. The Law of Honour 22

3. The Law of the Land 23

4. The Scriptures 24

5. The Moral Sense • 26

6. Human Happiness ,, . 33

7. Virtue 45

BOOK n.

MORAL OBLIGATION. Chap. 1, The Question, Why anti I obliged to keep my

word ? considered 53

2. What we mean, when we say a man is obliged

to do a thing 54

3. The Question, Why am I obliged to keep my

word ? resumed 56

4. The Will of God 68

5. The Divine Benevolence 60

6. Utility 62

7. The Necessity of General Rules 64

8. The Considerations of General Consequences

pursued 67

9. Of Right 70

10. The Division of Rights It

11. The General Rights of Mankind . 76

CONTENTS.

BOOK III.

RELATIVE DUTIES.

Part I. — of relative duties which are determinate.

Page Chap. 1. Of Property S2

2. The Use of the Institution of Property .... 83

3. The History of Property 85

4. In what the Right of Property is founded ... 87

5. Promises 92

6. Contracts , ... 103

7. Contracts of Sale IO4

8. Contracts of Hazard 107

9. Contracts of Lending of Inconsumable Property 109

10. Contracts concerning the Lending of Money . . Ill

11. Contracts of Labour — Service 115

12. Contracts of Labour — Commissions .119

13. Contracts of Labour — Partnership 121

14. Contracts of Labour — Offices 122

15. Lies 125

16. Oaths 129

17. Oath in Evidence 134

18. Oath of Allegiance 136

19. Oath against Bribery in the Election of Mem-

bers of Parliament '..... 139

20. Oath against Simony 139

21. Oaths to observe Local Statutes 142

22. Subscription to Articles of Religion 143

23. Wills 145

BOOK III.

Part II. — of relative duties which are indeterminate,

AND OF the crimes OPPOSITE TO THESE.

Chap. 1. Charity 151

2. Charity — The Treatment of our Domestics and

Dependants 152

CONTENTS, ix

Page.

VaiaP. 3. Slavery 153

4. Charity — Professional Assistance 156

6,. Charity — Pecuniary Bouhty 158

6. Resentment 167

7. Anger 167

8. Revenge 169

9. Duelling 173

10. Litigation 176

11. Gratitude 179

12. Slander 180

BOOK III.

Part HI.- — of kelative duties which result from the

CONSTITUTION OF THE SEXES, AND OF THE CRIMES OPPOS- ED TO THESE.

Chap. 1. Of the public Use of Marriage Institutions . . 183

2. Fornication 184

3. Seduction 189

4. Adultery » .... 192

5. Incest 196

6. Polygamy 197

7. Divorce 201

8. Marriage 208

9. Of the Duty of Parents 2'll

10. The Rights of Parents 224

11. The Duty of Children 226

BOOK IV.

DUTIES TO OURSELVES, AND THE CRIMES OPPOSITE TO THESE.

Chap. 1. The Rights of Self-Defence 231

2. Drunkenness 234

3. Suicide 239

2

X CONTENTS.

BOOK V.

DUTIES TOWARDS GOD.

Page. Chap. 1. Division of these Duties 246

2. Of the Duty and of the Efficacy of Prayer, so far

as the sanae appear from the Light of Nature 247

3. Of the Duty and Efficacy of Prayer, as repre-

sented in Scripture 253

4. Of Private Prayer, Family Prayer, and Public

Worship 256

6. Of Forms of Prayer in Public Worship . • . . 262

6. Of the Use of Sabbatical Institutions 267

7. Of the Scripture Account of Sabbatical Institu-

tions 270

8. By what Acts and Omissions the Duty of the

Christian Sabbath is violated 28 1

'9. Of reverencing the Deity 284

BOOK VI.

ELEMENTS OF POLITICAL KNOWLEDGE.

Chap. 1. Of the Origin of Civil Government 292

3. How Subjection to Civil Government is main- tained 296

3. The Duty of Submission to Civil Government

explained 3D2

4. Of the Duty of Civil Obedience, as stated in the

Christian Scriptures 314

5. Of Civil Liberty 321

6v Of Different Forms of Government 326

7. Of the British Constitution 335

8. Of the Administration of Justice 360

9. Of Crimes and Punishments 370

10. Of Religious Establishments, and of Toleration 390

11. Of Population and Provision; and of Agricul-

ture and Commerce, as subservient thereto 401 12.0f War, and of Military Establishments . ... 449

PREFACE.

IN the treatises that I have met with upon the subject of mor- ah, I appear to myself to have remarked the following imper- fections ; — either that the principle was erroneous, or that it was indistinctly explained, or that the rules deduced from it were not sufficiently adapted to real life and to actual situations. The writings of Grotius, and the larger work of PuffendorfF, are of too forensic a cast, too much mixed up with the civil law and with the jurisprudence of Germany, to answer precisely the design of a system of ethics — the direction of private consciences in the gener- al conduct of huma^n life. Perhaps, indeed, they are not to be re- garded as institutes of morality calculated to instruct an individual in his duty, so much a-s a species of law books and law authorities, suited to the practice of those courts of justice, whose decisions are regulated by general principles of natural equity, in <fon- junction with the maxims of the Roman code ; of which kind, T understand, there are many upon the Continent. To which may be added, concerning both these authors, that they are more oc« cupied in describing the rights and usages of independent com- munities, than is necessary in a work which professes not to ad- just the correspondence of nations, but to delineate the offices of domestic life. The profusion also of classical quotations with which many of their pages abound, seems to me a fault from which it will not be easy to excuse them. If these extracts be intended as decorations of style, the composition is overloaded with ornaments of one kind. To any thing more than ornament they can make no claim. To propose them as serious argu- ments ; gravely to attempt to establish or fortify a moral dut^

xii PREFACt:.

by the testimony of a Greek or Roman poet, is to trifle with the attention of the reader, or rather to take it off from all just prin ciples of reasoning in morals.

Of GUI' own writers in this branch of philosophy, I find iiont that I think perfectly free from the three objections which I have stated. There is likewise a fourth property observable in al- most all of them, namely, that they divide too much the law of Nature from the precepts of Revelation ; some authors industri- ously declining the mention of Scripture authorities, as belong- ing to a different province ; and others reserving them for a sep- erate volume : which appears to me much the same defect, as if a commentator on the laws of England should content himsclt with stating' upon each head tlie jcommon law of the land, with- out taking any notice of acts of parliament ; or should choose to give his readers the common law in one book, and the statute law ill another. "When the obligations of morality are taught," says a pious and celebrated writer, "let the sanctions of Chris- " tianity never be forgotten : by which it will be shewn that *' they give strength and lustre to each other : religion will ap- " pear to be the voice of reason, and morality tlie will of « God."*

The manner also in which modern writers l.iavc treated of subjects of morality, is, in my judgment, liable to much ex- ceptioji. It has become of late a fashion to deliver moral insti- tutes in strings or aeries of detached propositions, without sub- joining a continued argument or regular dissertation to any of them. This sententious apophthegmati/.ing style, by crowding propositions and paragraphs too fast upon the mind, and by car- rying the eye of the reader from subject to subject in too quick a succession, gains not a sufficient hold upon the attention, to ieave either the memory furnished, or the understanding satisfi- fid. However useful a syllabus of topics or a series of proposi- Hotts may be in the hands of a lecturer, or as a guide to a stu^

^ PrcfeiM to " The Preceptor," bj Dr, Johcjci

PREFACE.

xm

dent, wlio is supposed to consult other books, or to institute upon each subject researches of his own, the method is by no means convenient tor ordinary readers ; because few readers are such thinkers as to want only a hint to set their thoughts at work up- on ; or such as will pause and tarry at every proposition, till they have traced out its dependency, proof, relation, and consequen- ces ; before they permit themselves to step on to another. A re- spectable writer of this class* has comprised his doctrine of sla- very in the three following propositions : —

" No one is born a slave ; because every one is born with all " his original rights."

" No one can become a slave : because no one from beinor a " person can, in the language of tlie Roman law, become a thing, " or subject of property."

" The supposed property of the master in the sRve, therefore, is matter of usurpation, not of right."

It may be possible to deduce from these few adages such a the- ory of the primitive rights of human nature, as will evince the illegality of slavery ; but surely an author requires too much of his reader, when he expects him to make these deductions for himself; or to supply, perhaps from some remote chapter of the same treatise, the several proofs and explanations which are necessary to render the meaning and truth of these assertions in-^ (elligible.

There is a fault, the opposite of this, which some moralists who have adopted a different, and I think a better plan of com- position have not always been careful to avoid ; namely, the dwelling upon verbal and elementary distinctions with a labour and prolixity proportioned much more to the subtlety of the question, than to its value and importance in the prosecution of the subject. A writer upon the law of nature,! whose explica- tions in every part of philosophy, though alwa^'s diffuse, are of-

* Dr. Ferguson, autlior of " Institutes of Moral Philosophy," 1767. + Dr, Rutherforth, author of "Institutes of Natural Law.''

xiv PREFACE.

ten very successful, has employed three long sections in endeav- ouring to prove that " permissions are not laws." The discus- sion of this controversy, however essential it might he to dialectic precision, was certainly not necessary to the progress of a work designed to describe the duties and obligations of civil life. The reader becomes impatient when he is detained by disquisi- tions which have no other object than the settling of terms and pjirases ; and, what is worse, they for whose use such books are chiefly intended, will not be persuaded to read them at all.

I am led to propose these strictures not by any propensity to depreciate the labours of my predecessors, much less to invite a comparisoY) between the merits of their performances and my own ; but solely by the consideration, that when a writer offers a book to the public, upon a subject on which the public are al- ready in possession of many others, he is bound by a kind of literary justice to inform his readers, distinctly and specifically, what it is he professes to supply, and what he expects to im- prove. The imperfections above enumerated, are those which I have endeavoured to avoid or remedy. Of the execution the reader must judge : but this was the design.

Concerning the principle of morals it would be premature to spfeak ; but concerning the manner of unfolding and explaining that principle, I have somewhat which I wish to be remarked. An experience of nine years in the office of a public tutor in one of the universities, and in that department of education to which these chapters relate, afforded me frequent occasion to observe, that in discoursing to young minds upon topics of morality, it required much more pains to make them perceive the difficulty, than to understand the solution ; that, unless the subject was so drawn up to a point, as to exhibit the fidl force of an objection, or the exact place of a doubt, before any explanation was enter- ed upon ; — in other words, unless some curiosity was excited before it was attempted to be satisfied, the labour of the teacher was lost. When information was not desired, it was seldom, I found, retained. I have made this observation my guide in the

PREFACE. xr

following work : that is, upon each occasion I have endeavour- ed, before I suffered myself to proceed in the disquisition, to put the reader in complete possession of the question ; and to do it in the way that I thought most likely to stir up his own doubts and solicitude about it.

In pursuing the principle of morals through the detail of cases to which it is applicable, I have had in view to accommodate both the choice of the subjects, and the manner of handling them, to the situations which arise in the life of an inhabitant of this country in these times. This is the thing that I think to be prin- cipally wanting in former treatises ; and perhaps the chief ad- vantage which will be found in mine. I have examined no doubts, 1 have discussed no obscurities, I have encountered no errors, I have adverted to no controversies, but what I have seen actually to exist. If some of the questions treated of appear to a more instructed reader minute or puerile, I desire such reader to be assured that I have found them occasions of difficulty to young- minds ; and what I have observed in young minds, I should ex- pect to meet with in all who approach these subjects for the first time. Upon each article of human duty I have combined with the conclusions of reason the declarations of Scripture, when they are to be had, as of co-ordinate authority, and as both terminat- ing in the same sanctions.

In the manner of the work, I have endeavoured so to attemper the opposite plans above animadverted upon, as that the reader may not accuse me either of too much haste or too much delay. 1 have bestowed upon each subject enough of dissertation to give a body and substance to the chapter in which it is treated of, as well as coherence and perspicuity ; on the other hand, I have seldom, I hope, exercised the patience of the reader by the length and prolixity of my essays, or disappointed that pa- tience at last by the tenuity and unimportance of the conclu- sion.

There are two particulars in the following work, for which it may be thought necessary that 1 should offer some excuse. The

xvi frj:face.

first of uhich is, that I have scarcely ever referred to any olhtr book, or mentioned the name of the author whose thoughts, and sometimes, possibly, whose very expressions I have adopted. My method of writing has constantly been this ; to extract what I could from my own stores and my own reflections in the first place ; to put down that, and afterwards to consult upon each subject such readings as fell in my way : which order I am con- vinced, is the only one whereby any person can keep his thoughts from sliding into other men's trains. The effect of such a plan upon the production itself will be, that, whilst some parts in matter or manner may be new, others will be little else than a repetition of the old. 1 make no pretensions to perfect origin- ality : 1 claim to be something more than a mere compiler. Much, no doubt, is borrowed ; but the fact is, that the notes for this work having been prepared for some years, and such things having been from time to time inserted in them as appeared to me worth preserving, and such insertions made commonly with- out the name of the author from whom they w^ere taken, I should, at this time, have found a difficulty in recovering these names with sufficient exactness to be able to render to every man his own. Nor, to speak the truth, did it appear to me worth while to repeat the search merely for this purpose. When authorities are relied upon, names must be produced: when a discovery has been made in science, it may be unjust to borrow the invention without acknowledging the author. But in an argumentative treatise, and upon a subject which allows no place for discovery or invention, properly so called ; and in which all that can be- long to a writer is his mode of reasoning or his judgment of probabilities ; I should have thought it superfluous, had it been easier toTne than it was, to have interrupted my text, or crowd- ed my margin with references to every author whose sentiments I have made use of. There is, however, one work to which I owe so much, that it would be ungrateful not to confess the ob- ligation : I mean the writings of the late Abraham Tucker, Esq. part of which were published hy himself, and the remainder

tJlEFACE.

XVU

since his death, under the title of " The light of Nature pursued, " by Edward Search. Esq." I have found in this writer more original thinking and observation upon the several subjects that he has taken in hand, than in any other, not to say, than in all others put together. His talent also for illustration is unrivalled. But his thoughts are diffused through a long, various, and ir- regular work. I shall account it no mean praise, if 1 have been sometimes able to dispose into method, to collect into heads and articles, or to exhibit in more compact and tangible masses, what, in that otherwise excellent performance, is spread over too much surface.

The next circumstance for which some apology may be ex- pected, is the joining of moral and political philosopliy together, or the addition of a book of politics to a system of ethics. Against this objection, if it be made one, I might defend mj'self by the example of many approved writers, who have treated de officiisr hominis et civis, or, as some choose to express it, '' of the rights " and obligations of man, in his individual and social capacity," in the same book. I might allege, also, that the part a member of the commonwealth shall take in political contentions, the vote he shall give, the counsels he shall approve, the support he shall afford, or the opposition he shall make, to any system of public measures, — is as much a question of personal duty, as much con- cei'ns the conscience of the individual who deliberates, as the determination of any doubt which relates to the conduct of pri- vate life ; that consequently po^'ftical philosophy is, properly speaking, a continuation of moral philosophy ; or rather indeed, a part of it, supposing moral philosophy to have for its aim the information of the human conscience in every deliberation that is likely to come before it. 1 might avail myself of these ex- cuses if I wanted them ; but the vindication upon v, hich I rely is the following. In stating the principles of morals, the reader will observe that 1 have employed sotc industry in explaining the theory, and showing the necessity o( general rules ; without the full and constant consideration cf which, I am persuaded thut 3

ivin PREFACE.

ao system of moral philosophy can be satisfactory or consistent. This foundation being laid, or rather this habit being formed, the discussion of political subjects, to which, more than to almost any other, general rules are applicable, became clear and easy. Whereas, bad these topics been assigned to a distinct work, it would have been necessary to have repeated the same rudi- ments, to have established over again the same principles, as those which we had already exemplified, and rendered familiar to the reader, in the former parts of this. In a word, if there appear to any one too great a diversity, or too wide a distance between the subjects treated of in the course of the present vol- ume, let him be reminded, that the doctrine of general rules per- vades and connects the whole.

It may not be improper, however, to admonish the reader, that, under the name o( politics he is not to look for those occa- bional controversies which the occurrences of the present day, or any temporary situation of public affairs, may excite ; and most of which,^ if not beneath the dignity, it is beside the purpose of a philosophical institution to advert to. He will perceive that the several disquisitions are framed with a reference to the condi- tion of this country, and of this government : but it scem.ed to me to belong to the design of a work like the following not so much to discuss each altercated point with the particularity of a political pamphlet upon the subject, as to deliver those univer- sal principles, and to exhibit that mode and train of reasoning in politics, by the due application of which every man might be enabled to attain to just conclusions of his own. I am not igno- rant of an objection that has been advanced against all abstract speculations concerning the origin, principle, or limitation of civil authority ; namely, that such speculations posses* little or no- influence upon the conduct either of the state or of the subject, of the governors or the governed ; nor are attended with any useful consequences to either ; that in times of tranquillity they are not wanted ; in times of confusion they are never heard. This representation, however, in my opinion, is not just. Timeg

PREFACE. zix

of tumult, it is true, are not the times to learn ; but the cBoice which men make of their side and partj, in the most critical oc- casions of the commonwealth, may nevertheless depend upon the lessons they have received, the books they have read, and the opinions they have imbibed, in seasons of leisure and quietness. Some judicious persons, who were present at Geneva during the troubles which lately convulsed that city, thought Ihey per- ceived, in the contentions there carrying on, the operation of that political theory, which the writings of Rousseau, and the unbounded esteem in which these writings are held by his countrymen, had diffused amongst the people. Throughout the political disputes that have within these few years taken place in Great Britain, in her sistei kingdom, and in her foreign de- pendencies, it was impossible not to observe, in the language of party, in the resolutions of popular meetings, in debate, in con- versation, in the general strain of those fugitive and diurnal ad- dresses to the public which such occasions call forth, the preva- lency of those ideas of civil authority which are displayed in the works of Mr. Locke. The credit of that great name, the cour- age and liberality of his principles, the skill and clearness with which his arguments are proposed, no less than the weight of the arguments themselves, have given a reputation and currency to his opinions, of vvhich I am persuaded, in any unsettled state of public affairs, the influence would be felt. As this is not a place for examining the truth or tendency of these doctrines, I would not be understood, hy what I have said, to express any judgment concerning either. I mean only to remark, that such doctrines are not without effect ; and that it is of practical importance to have the principles from which the obligations of social union, and the extent of civil obedience, are derived, rightly explained, and well understood. Indeed, as far as I have observed, in po- litical beyond all other subjects, where men are without some fundamental and scientific principles to resort to, they are liable to have their understandings played upon by cant phrases and amneaning terms, of which every party in every country possp^-

XX PREFACE.

ses a vocabulaiy. ^Vc appear astonished when we 6ee tlie mul titude led away by sounds : but we should remember, that if sounds work miracles, it is always upon ignorance. The influ- ence of names is in exact proportion to the want of knowledge.

These are the observations with which I have judged it expe- dient to prepare the attention of my -reader. Concerning the personal motives which engaged me in the following attempt, it is not necessary that I say much ; the nature of my academical situation, a great deal of leisure since my retirement from it, the recommendation of an honoured and excellent friend, the author- ity of the venerable prelate to whom these labours are inscribed, the not perceiving in what way I could employ my time or tal- ents better, and my disapprobation in literary men of that fasti- dious indolence, which sits still because it disdains to do little, were the considerations that directed my thoughts to this design. Nor have I repented of the undertaking. Whatever be the fate or reception of this work, it owes its author nothing. In sickness and in health 1 have found in it that which can alone alleviate the one, or give enjoyment to the other, — occupation and en- gagement.

Tci44r<uct :f ^r-^

MORAL PHILOSOPHY.

BOOK I.

PRELIMIJVARY COJVSIDERATIOJVS.

CHAPTER I.

DEFINITION AND USE OF THE SCIENCE.

MORAL PHILOSOPHY, Morality, Ethics, Casuistry, Na- tural Law, mean all the same thing ; namely, that science which teaches men their duty and the reasons of it.

The use of such a study depends upon this, that, without it, the rules of life, by which men are ordinarily governed, often- times mislead them, through a defect either in the rule, or in the application.

These rules are, the Law of Honour, the Law of the Land, and the Scriptures,

22. THE LAW OF HONOUR.

CHAPTER n.

THE LAW OF HONOUR.

THE Law of Honour is a system of rules constructed by peo- ple of fashion, and calculated to facilitate their intercourse with one another ; and for no other purpose.

Consequently, nothing is adverted to by the Law of Honour, but what tends to incommode this intercourse.

Hence this law only prescribes and regulates the duties betwixt equals ; omitting such as relate to the Supreme Being, as well as those which we owe to our inferiors.

For which reason, profaoeness, neglect of public worship or private devotion, cruelty to servants, rigorous treatment of ten- ants or other dependents, want of charity to the poor, injuries done to tradesmen, by insolvency or delay of payment, with numberless examples of the same kind, are accounted no breach- es of honour ; because a man is not a less agreeable companion for these vices, nor the worse to deal with, in those concerns which are usually transacted between one gentleman and another.

Again, the Law of Honour, being constituted by men occupi- ed in the pursuit of pleasure, and for the mutual conveniency of such men, will be found, as might be expected from the charac- ter and design of the law-makers, to be in most instances favom*- able to the licentious indulgence of the natural passions.

Thus it allows of fornication, adultery, drunkenness, prodigal- ity, duelling, and of revenge in the extreme ; and lays no stress upon the virtues opposite to these.

THE LAW OF THE LAND, 23

CHAPTER lU,

THE LAW OF THE LAND.

THAT part of mankind, who are beneath the Law of Hon- our, often make the Law of the Land their rule of life ; that is, they are satisfied with themselves, so long as they do or omit nothing, for the doing or omitting of which the law can punish them.

Whereas every system of human laws, considered as a rule of life, labours under the two following defects : —

L Human laws omit many duties, as not objects of compul- sion ; such as piety to God, bounty to the poor, forgiveness of injuries, education of children, gratitude to benefactors.

The la?v never speaks but to command, nor commands but where it can compel ; consequently those duties, which by their nature must be voluntary, are left out of the statute-book, as ly- ing beyond the reach of its operation and authority.

II. Human laws permit, or, which is the same thing, suffer to go unpunished, many crimes, because they are incapable of be- ing defined by any previous description. — Of which nature is luxury, prodigality, partiality in voting at those elections where the qualifications of the candidate ought to determine the suc- cess, caprice in the disposition of men's fortunes at their death, disrespect to parents, and a multitude of similar examples.

For this is the alternative : the law must either define be- forehand and with precision the offences which it punishes, or it must be left to the discretion of the magistrate, to determine upon each particular accusation, whether it constitutes that of- fence which the law designed to punish, or not ; which is, in

24 THE SCRIPTURES.

effect, leaving to the magistrate to punish or not to punish, at his pleasure, the individual who is brought before him ; which is just so much tyranny. Where, therefore, as in the instances above-mentioned, the distinction between right and wrong is of too subtle or of too secret a nature to be ascertained by any preconcerted language, the law of most countries, especially of free states, rather than commit the liberty of the subject to the discretion of the magistrate, leaves men in such cases to them- selves.

CHAPTER IV.

THE SCRIPTURES.

WHOEVER expects to find Tn the Scriptures particular di rections for every moral doubt that arises, looks for more than he will meet with. And to what a magnitude such a detail of particular precepts would have enlarged the sacred volume, may be partly understood from the following consideration : — The laws of this country, including the acts of the legislature, and the decisions of our supreme courts of justice, are not con- tained in fewer than fifty folio volumes ; and yet it is not once in ten attempts tint you can find the case you look for, in any law-book whatever : to say nothing of those numerous points of conduct, concerning which the law professes not to prescribe or determine any thing. Had then the same particularity which obtains in human laws, so far as they go, been attempted in the Scriptures, throughout the whole extent of morality, it is mani- fest they would have been by much too bulky to be either read or circulated ; or rather, as St. John says, " even the world it- " self could not contain the books that should be written."

TtlE SCRif TURES-, ^5

Morality is taught in Scripture fn this wise : — General rules Sre laid down of pietj, justice, benevolence, and purity : such as, worshipping God in spirit and in truth ; doing as we would be done by ; loving our neighbour as ourself ; forgiving others, as we expect forgiveness from God ; that mercy is better than sacrifice ; that not that which entereth into a man, (nor, by par- ity of reason, any ceremonial pollutions,) but that which pro- ceedeth from the heart, defileth him. Several of these rules are occasionally illustrated, either in fictitious examples, as in the parable of the good Samaritan ; of the cruel servant, who refused to his fellow-servant that indulgence and compassion which his master had shown to him ; or in instances wJiich actually pre- sented thenisclvcs, as in Christ's reproof of his disciples at the Sa- maritan village ; his praise of the poor widow, who cast in her last mi(e ; his censure of the Pharisees, who chose out the chief rooms, — and of the tradition, whereby they evaded the com- mand to sustain their indigent parents ; or, lastly, in the resolu- tion of questions, which those who were about our Savio^lr pro- posed to him; as his answer to the young man who asked him, '' What lack I yet ?" and to the honest scribe, who had found out, even in that age and country, that " to love " God and " his neighbour, was more than all whole burnt offerings and " sacrifice."

And thi.i is the way in which all practical sciences are taught, as Arithmetic, Grammar, Navigation, and the like. — Rules are laid down, and examples are subjoined : not that these examples are the cases, muck less all the cases which wijl actuallj'^ occur, but by way only of explaining the principle of the rule, and as so marty specimens of the method of applj'ing it. The chief difference is, that the examples in Scripture are not annexed to the rules with the didactic regularity to which we are now-a- days accustomed, but delivered dispersedly, as particular occa- sions suggested them ; which gave them, however, (especially to those who heard them, and were present to the occasions which produced them,) an energy and persuasion, much beyond what 4

26 THfE MORAL SENSE.

tb6 same or any instances would have appeared vfritb, in thei;? places in a system.

Besides this, the Scriptures commonly pre-suppose in the per- sons they speak to, a knowledge of the principles of natural jus- tice ; and are employed, not so much to teach new rules of mo- rality, as to enforce the practice of it by new sanctions, and a greater certainty ; which last seems to be the proper business of a revelation from God, and what was most wanted.

Thus flie " unjust, covenant-breakers, and extortioners," are condemned in Scripture, supposing it known, or leaving it, where it admits of doubt, to moralists to determine, what injustice, ex- tortion, or breach of covenant, are.

The above considerations are intended to prove, that the Scriptures do not supersede the use of the science of which we profess to treat, and to acquit them of any charge of imperfec- tion or insufficiency on that account.

CHAPTER V*

THE MORAL SENSE.

" THE father of Cains Toranius had been proscribed by the *•' triumvirate. Caius Toranius, coming over to the interest of " that party, discovered to the officers, who were in pursuit of his " father's life, the place where he concealed himself, and gave *' them withal a description, by which they might distinguish his " person when they found him. The old man, more anxious for " the safety and fortunes of his son, than about the little that " might remain of his own life, began immediately to inquire "of the officers who seized him. Whether bis son was well, *' whether he had done his duty to the satisfaction of his gene- ^'rals? " That son," replied one of the officers, "so dear to " thy affections, betrayed thee to us j by his information thon

TIIE MORAL SENSE. 27

"' art appreliended, and diest." " The officer with this struck a •" poniard to his heart, and the unhappy parent fell, not so much " affected bj his fate, as by the means to which he owed it."*

Now the question is, whether, if this story were related to the wild boy caught some years ago in the woods of Hanover, or to a savage without experience, and without instruction, cutoff in his infancy from all intercourse with his species, and, conse- quently, under no possible influence of example, authority, ed- ucation, sympathy, or habit ; whether, I say, such a one would feel, upon the relation, any degree of tkat sentiment of disappro- hatioH of Toranius''s conduct which we feel, or not ?

They who maintain the existence of a moral sense, of innate maxims, of a natural conscience, that the love of virtue and ha- tred of vice are instinctive, or the perception of right and wrong intuitive, (all which are only dififerent ways of expressing the same thing,) affirm that he would.

They who deny the existence of a moral sense, &c. affirm that he would nol.

And upon this, issue is joined.

As the experiment has never been made, and, from the diffi- xulty of procuring a subject, (not to mention the impossibility of proposing the question to him, if we had one,) is never likely to be made, what would be the event can only be judged ckJT from probable reasons.

They who contend for the affirmative, observe, that we ap- prove examples of generosity, gratitude, £delity., &c. and con-

*"Caius Toranlus triumvirum partes sscutus, proscripti patris siii prsetorii et ornati viri latebras, aetatem, notasque corporis, quibua agnosci posset, centurionibus edidit, qui eura persecuti sunL Senes de iilii ma- gis vita, et incremejitis, quam de reliquo spiritu suo soiicitus, ;aii incolu- mis esset, et an imperatoribus, satisfaceret, interrogate eos coepit, iE qui- bus unus : ab illo, inquit quem tautopere diligis, demcBstratiis nostro nainisterio, filii indicio occideris : protinusque pectus ejus gladio trajecit^ Coilapsus ilaqae est iafelix, auctore csedis, quam ipsa cede, luiserior."

Valek. Max. Lib, vs.. cap. It,

20 Tin: MOPtAr. sense.

deinn (he ctjnlraiy, instantly, without deliberation, without liav- ini; any interest of our own concerned in them, oft-times without being conscious of, or able to give any reason for our approba- tion ; that this approbation is uniform and univer.'ra], the same sorts of conduct being approved or disapproved in all ages and countries of the world, — circumstances, say they, which strongly indicate the operation of an instinct or moral sense.

On the other hand, answers have been given to most of these arguments by the patrons of the opposite system ; and.

First, As to the uniformity above alleged, they controvert the fact. They remark, from" authentic accounts of historians and travellers, that there is scarce a single vice which, in some age or country of the world, has not been countenanced by public opinion ; that in one country, it is esteemed an office of piety in children to sustain their aged parents, in another, to despatch them out of the way ; that suicide, in one age of the world, has been heroism, in another felony ; that theft, which is punished by most laws, by the laws of Sparta was not unfrequently re-- warded ; that the promiscuous commerce of the sexes, although condemned by the regulations and censure of all civilized nations, is practised by the savages of the tropical regions without reserve, compunction, or disgrace : that crimes, of which it is no longer permitted us even to speak, have had their advocates amongst the sages of very renowned times ; that, if an inhabitant of the polished nations of Europe be delighted with the appearance, wherever he meets with it, of happiness, tranquillity, and com- fort, a wild American is no less diverted with the writhings and contortions of a victim at the stake ; that even amongst ourselves, and in the present improved state of moral knowledge, we are far from a perfect consent in our opinions or feelings ; that you shall hear duelling alternately reprobated and applauded, according to the sex, age, or station of the person you converse with ; that the forgiveness of injuries and insults is accounted by one sort of ^bJl people magnanimity, by another, meanness ; that in the above '*

instances, and perha;os in most otheis, moral approbation fo'lowj

THE MORAL SENSE. 29

the fashions and institutions of the country we live in ; which fashions also and institutions themselves have grown out of the ex- igencies, the climate, situation, or local circumstances of the coun- try ; or have been set up by the authority of an abitrary chief- tain, or the unaccountable caprice of the multitude ; — all which, they observe, looks very little like the steady hand and indelible characters of nature. But,

Secondly, Because, after these exceptions and abatements, it cannot be denied but that some sorts of actions command and receive the esteem of mankind more than others, and that the approbation of them is general, though not universal : As to this ihey say, that the general approbation of virtue, even in instances where we have no interest of our own to induce us to it, may bo accounted for without the assistance of a moral sense ; thus : —

" Having experienced, in some iustancc, a particular conduct *' to be ben(^ficial to ourselves, or observed tliat it would be so, ^ a sentiment of approbation rises up inour minds; which sentiment " afterwards accompanies the idea or mention of the same con- " duct, although the private advantage which tirst excited it be " no mere."

And this continuance of the passion after the reason of it has eeased, is nothing else, §ay they, than what happens in other cases ; especially in the love of money, which is in no person so strong and eager, as it is oftentimes found to be in a rich old miser, without family to provide for, or friend to oblige by it, and to whom consequently it is np longer (and he may be sensi- ble of it too) of any real use or value ; yet is this man as much overjoyed with gain, and mortified by losses, as he was the first day he opened his shop, and when his very subsistence depended upon his success in it.

By these means the custom of approving certain actions com- menced ; and when once such a custom hath got footing in the world, it is no difficult thing to explain how it is transmitted and continued ; for then the greatest part of those who approve of virtue, appfove of it from authority, by jraitationj *nd from a

30 THE MORAL SENSE.

habit of approving such and such actions inculcated in earjj youth, and receiving, as men grow up, continual accessions of strength and vigour, from censure and encouragement, from the books they read, the conversations they hear, the current appli- cation of epithets, and turn of language, and the various other causes by which it universally comes to pass, that a society of men, touched in the feeblest degree with the same passion, soon tiommunicate to one another a great degree of it.* This is the case with most of us at present ; and is the cause also that the process of association, described in the last paragraph but one, is now-a-days little either perceived or wanted.

Amongst the causes assigned for the continuance and diffusion of the same moral sentiments amongst mankind, we have men- tioned imitation. The efficacy of this principle is most observ- able in children ; indeed, if there be any thing in them which deserves the name of an instinct, it is their propensity to imitation. Now, there is nothing which children imitate or apply more readily than expressions of affection and aversion, of approbation, hatred, resentment^ and the like ; and when these passions and expressions are once connected, whiph they soon will be by the same association which unites words with their ideas, the passion will follow the expression, and attach upon the object to which the child has been accustomed to apply the epithet. In a word, nvhen almost every thing el«e is learned by imitation, can we wonder to find the same cause concerned in the generation of our moral sentiments ?

* "From instances of popular tumult, seditious, factions, panics, and oX »11 passions which are shared with a multitude, we may learn the influence of society in exciting and supporting any emotion ; while the most ungo- vernable disorders are raised, we find, by that means, from the slightest and most frivolous occasions. He must be more or leas than man who kindles not in the common blaze. "What wonder, then, that moral senti- ments are found ef such influence in life, though springing from principles which may appear, at iirst sight, somewhat small and delicate !" Hume't inquiry concerning the Pj-inciples of Morals, Sect. ix. p. 32*5.

THE MORAL SENSE. 3|

Anofher considerable objection to the system of moral iftstincts is this, that there are no maxims in the science which can well be deemed innate, as none perhaps can be assigned, which are absolutely and universally true ; in other words, which do not hend to circumstances. Veracity, \<hich seems, if any be, & riatural duty, is excused in many cases towards an enemy, a thief, or a mad man. The obligation of promises, which is a first prin- ciple in morality, depends upon (he circumstances under which they were made : they may have h^Qn unlawful, or become so since, or inconsistent with former promises, or erroneous, or ex- torted ; under all which cases, instances may be suggested, where the obligation to perform the promise would be dubious or discharged, and so of most other general rules, when they come fo be actually applied.

An argument has been also proposed on the same side of the question, of this kind. Together with the instinct, there must have been implanted, it is said, a clear and precise idea of the object upon which it was to attach. The instinct and the idea of the object are inseparable even in imagination, and as neces- sarily accompany each other as any correlative ideas whatever ; that is, in plainer terms, if we be prompted by nature to the ap- probation of particular actions, we must have received also from nature a distinct conception of the action we are thus prompted fo approve ; which we certainly have not received.

But as this argument bears alike against all instincts, in brutes as well as in men, it will hardly, I suppose, produce conviction, though it may be difficult to find an answer to it.

Upon the whole, it seems to me, either that there exist no such instincts as compose what is called the moral sense, or that they are not now to be distinguished from prejudices and habits 5 en which account they cannot be depended upon in moral rea- soning : I mean, that it is not a safe way of arguing, to assume certain principles as so many dictates, impulses, and instincts of nature, and then to draw conclusions from these principles, as to the rectitude or vvrongness of actions, independent of the tenden- cy of such actions, or of any other consideration whatever.

32 THE MORAL SfiNSE.

Aristotle lays down, as a fundamental and self-evident maxim, thai nature intended barbarians to be slaves, and proceeds to de- duce from this maxim a train of conclusions, calculated to justify the policy which then prevailed. And I question whether the same maxim be not still self-evident to the company of mer- chants trading to the coasts of Africa.

Nothing is so soon made as a maxim ; and it appears from the example of Aristotle, that authority and convenience, education, prejudice, and general practice, have no small share in the mak- ing of them, and that the laws of custom are very apt to be mis- taken for the order of nature.

For which reason, I suspect, that a system of morality, built tipon instincts, will only find out reasons and excuses for opinions and practices already established, — will seldom correct or re- form either.

But further, suppose we admit the existence of these instincts, what is their authority ? No man, you say, can act in deliberate opposition to them without a secret remorse of conscience. Rut this remorse may be borne with : and if the sinner choose to bear with it, for the sake of the pleasure or the profit which he expects from his wickedness ; or finds the pleasure of the sin to exceed the remorse of conscience, of which he alone is the judge, and concerning which, when he feels them both together, he can hardly be mistaken, the moral instinct man, so far as I can un- derstand, has nothing more to offer.

For if he allege that these instincts are so many indications of the will of God, and consequently presages of what we are to look l"or hereafter, this, I answer, is to resort to a rule and a mo- tive ulterior to the instincts themselves, and at which rule and motive we shall by-and-by arrive by a surer road ; — I say surer, so long as there remains a controversy, whether there be any instinctive maxims at all, or any difiiculty in ascertaining what maxims are instinctive.

This celebrated question, therefore, becomes in our system a (juestion of pure curiosity ; and as such, we dismiss it to the dc-

HUMAN HAPPINESS. - 33

tenriination of those vvlio are more inquisitive than we are con- cerned to be, about the natural history and constitution of the imnian species.

CHAPTER VL

HUMAN HAPPINESS.

THE word happy is a relative term ; that is, when we call a tnan hnppy, we mean that he is happier than some others, with whom we compare him ; than the generality of others ; or than he himself was in some other situation : — Thus, speaking of one who has just compassed the object of a long pursuit, " Now," vve say, " he is hnppy ;" and in a like comparative sense, com- pared, that is, with the general lot of mankind, we call a man happy who possesses health and competency.

In strictness, any condition may be denominated happy, in which the amount or aggregate of pleasure exceeds that of pain ; and the degree of happiness depends upon the quantity of this excess.

And the greatest quantity of it ordinarily attainable in human life, is what v/e mean by happiness, when we inquire or pro- nounce what humaa happiness consists in.*

* If 'Auy positive signification, distinct from what we mean by pleasure, can be affixed to tlie term " happiness," I shoi^ld take it to denote a cer- tain state of the nervous system in that part of the human frame in which, we feel joy and grief, passions and afTections. Whether this part be tlie heart, which tlie turn of most languages would lead us to believe, or the diaphragm, as Buffon, or the upper orifice of the stomach, as Van Helmout thought ; or rather be a kind of fine net work, lining the whole region of the praecordia, as others have imagined, it is possible, not only that each painful sensation may violently shake and disturb the fibres at the time, but that a series of such may at length so derange the A'ery texture of the 5

34 ll^UMAN HAl'i'lNESS.

In which iiKiuhy I will omit much usual declamalioii on the dignity and capacity ui our nature ; the superiority of the soul to the body, of the rational to the animal part of our constitution , upon the worthiness, telinement, and delicacy of some satisfac- tions, or the meanness, grossness, and sensuality of others ; be- cause 1 hold that pleasures dilfer in nothing but in continuance and intensity : from a just computation of which, confirmed by what we observe of the apparent cheerfulness, tranquillity, and contentment of men of diilerent tastes, tempers, stations, and pursuits, every question concerning human happiness must re- ceive its decision.

It will be our business, to show, if we can,

I. What human happiness does not consist in,

II. What it does consist in.

First, then. Happiness does not consist in the pleasures of sense, in whatever profusion or variety they be enjoyed. By the pleasures of sense, I mean, as well the animal gratifications of eating, drinking, and that by which the species is continued, as the more refined pleasures of music, painting, architecture, gar- dening, splendid shows, theatric exhibitions ; and the pleasures, lastly, of active sports, as of hunting, shooting, fishing, i^'c. For,

Istf These pleasures continue but a little while at a time.

system, as to produce a perpetual irritation, which will show itself by fretfuhiess, impatience, and restlessness. It is possible, also, on the other hand, that a succession of pleasurable sensation? may have such an effect upon this subtile organization, as to cause the fibres to relax, and returu into their place and order, and thereby to recover, or, if not lost, to pre- serve that harmonious confirmation which gives to the.miud its sense of complacency and satisfaction. This slate may be denominated happiness, and is so far distinguishable from pleasure, that it does not refer to any particular object of enjoyment, or consist, like pleasure, in the gratifica- tion of one or more of the senses, but is rather the secondary effect which such objects and gratifications produce upon the nervous system, or the state in whicli they leave it. These conjectures belong not, however, to our province. The comparative sense, in which we have explained the term happiness, is more popular, and is iuOicient for the purpose of the ■present chapter.

Tbis is true of them all, especially of the grosser sort. Laying aside the preparation, and the expectation, and computing strict- ly the actual sensation, we shall be surprised to find how incon- siderable a portion of our time they occupy, how fev; hours in the four-and-tvventy they are able to fill up.

Mdhj., These pleasures, by repetition, lose their relish. It is ja property of the machine, for which we know no remedy, that •the organs by which we perceive pleasure, arc blunted and be- numbed by being frequently exercised, in the same way. There is hardly any one who has not found the difference between a gratification, when new, and when familiar, or any pleasure which ^does not become indifferent as it grows habitual.

3t//^, The eagerness i'or high and intense delights takes away

• <lhe relish from all others ; and as such delights fall rarjely in our way, the greater part of oiir time becomes, from this caus^, empty a«<luneasy:.

There is hardly any delusion bywhich men are greater suf^ ferers in their happiness, than by their expecting too much from what is called pleasure; that is, from those intense delights which vulgarly engross the name of pleasure. The very ex- pectation spoils them. When they do come, we are often en- gaged in taking pains to persuade ourselves how much we are •pleased, rather than enjoying any pleasure which springs natur- ally out of the object. And whenever we depend upon being vastly delighted, we always go home secretly grieved at missing

• our aiiii. .Likewise, as has been observed just now, when this •humo\:r of .being prodigiously del'ighted has once taken hold of .the imagination, it hinders us from providing for, or acquiescing in, those gently soothing engagements, the due variety and suc-

^cession of which are the only tilings that supply a continued stream of happiness.

What 1 have been able to observe of that part of rnankind.s •whose professed pursuit is plonsure, and who are withheld in the; rp^rsuit by no resti-aints of fortune, or scruples of cotiscJencs., coj-

36 HUMAN HAPPINESS.

responds sufficiontlj with this account. I have commonly re- marked in such men, a restless and inextinguishable passion for variety ; a great part of their time to be vacant, and so much of it irksome ; and that, with whatever cai^erness and expectation they set out, they become, by degrees, fastidious in their choice of pleasure, languid in the enjoyment, yet miserable under the ^vant of it.

The truth seems to be, that there is a limit at vvhicli these pleasui'es soon arrive, and from which they ever afterward? de-r clinc. They are by necessity of short duration, as the organs cannot hold on their emotions beyond a certain length of time : and if yon endeavour to compensate for this imperfection in theip nature, by the frocjuvncy with which you repeat them, you lose more than you gain, by the fatigue of the faculties, and tlie di-. jninution of sensibility.

We have said nothing in this account, of the loss of opp(»rtuni- ties, or the decay of faculties, which, whenever they happen, leave the voluptuary destitute and desperate ; teased by desires that can never be gratified, and the memory of pleasures which must return no more.

It will also be allowed by those who have experienced it, and perhaps by those alone, that pleasure which is purchased by the encumberancc of our fortune, is purchased too dear ; the pleas- ure never compensating for the perpetual irritatiun of embarras- sed circumstances.

These pleasures, after all, have their value ; and as the young are always too eager in their pursuit of them, the old are sometimes too remiss ; that is, too studious of their ease, to be at the pains for them which they really deserve.

Secondly, Neither does happiness consist in an exemption from pain, labor, care, business, suspense, moIe^tation, and " those evils which are without ;" such a state being usually at- tended, not with ease, but with depression of spirits, a tastelessr ness in all our ideas, imaginary anxieties, and the whole train pf hypochondriacal affections..

HUMAN HAPPINESS. 37

For which reason, it seldom answers the exjiectations of tliose "fvho retire from their shop- and counting-houses to enjoy the re-? mainder of their days in leisure and tranquillity ; much less of such, as, in a fit of chagrin, shut themselves up in cloisters and hermitages, or quit the world, and their stations in it, for solitude and repose.

Where there exists a knpwn external cause of uneasiness, the cause may be removed, and the uneasaiess will cease. But those imaginary distresses which men feel for w"ant of real ones, (and which are equally tormenting, and so far equally real,) as they depend upon no single or assignable subject of uneasiness, admit oftentimes of no application or relief.

Hence a moderate pain, upon which the attention may fasten and spend itself, is to many a refreshment ; as a fit of the gout will sometimes cure the spleen. And the same of any moderate agitation of the mind, as a literary controversy, a law-suit, a contested election, and above all, gaming ; the passion for which, in men of fortune and liberal minds, is only to be accounted for on this principle.

Thirdly, Neither does happiness consist in greatness, rank, or elevated station.

Were it true, that all superiority afforded pleasure, it woul4 follow, that by how much we wei-e the greater, that is, the more persons we were superior to, in the same proportion, so far as depended upon this cause, we should be the happier ; but so it is, that no superiority yields any satisfaction, savp that which we possess or obtain over those with whom we immediately com- pare ourselves. The shepherd perceives no pleasure in his su- periority over his dog ; the farmer, in his superiority over the shepherd ; the lord, in his supeii^rity over the farmer ; par the king, lastly, in his superiority over the lord. Superiority, where there is no coinpetition, is seldom contemplated ; what most men indeed are quite unconscious of.

But if the same shepherd can run, fight, or wrestle, better than the peasants of his village ; if the farm.er can show better

38 HUMAN IIArPlXESS

cattle, if he keep a belter horse, or be «uppo'-nd to h.ive a longer purse than any farmer in the himdrefl ; if tl)e lord have more interest in an election, greater favour at court, a better house, or larger estate, than any nobleman in the county ; if the king possess a more extensive territory, a more powerful fleet or ar- my, a more splendid establishment, more loyal subjects, or more weight and authority in adjusting the affairs of nations, than any prince in Europe : in all these cases the parties feel an actual satisfaction in their superiority.

T^ow, the conclusion that follows from hence is this, that the pleasures of ambition, which are supposed to be peculiar to high stations, are in reality common to all conditions. The farrier who shoes a horse better, and who is in greater request for his skill than any man within ten miles of him. possesses, for all that I can see, the delight of distinction and of excelling, as tru- ly and substantially as the statesman, the soldier, and the schol- ar, who have filled Europe with the reputation of their wisdom, their valour, or their knowledge.

No superiority appears to be of anj' account, but superiority over, a rival. This, it is manifest, may exist wherever rivalships do ; and rivalships fall out amongst men of all ranks and degrees. The object of emulation, the dignity or magnitude of this object, makes no difference ; as it is not what either possesses that con- stitutes the pleasure, but what one possesses more than the other.

Philosophy smiles at the contempt with which the rich and grea* speak of the petty strifes arwl competitions of tlie poor; ■not reflecting, that these strifes and competitions are just as reasonable as their own, and the pleasure which success affords, the same.

Our position is, that happines does not consist in greatness. And this position we make out by showing, that even what are supposed to be the peculiar advantages of greatness, the pleas- ures of ambition and superiority, are in realit}^ common to all conditions. But whether the jiursuits of ambition be ever wise» •whether they contribute more to the happiness or miserj' of tbft

HUMAN HAPPINESS. 39

pursuers, is a different question, and a question concerning which we may be allowed to entertain great doubt. The pleasure of success is exquisite ; so also is the anxiety of the pursuit, and the pain of disappointment ; — and what is the worst part of the account, the pleasure is short-lived. We soon cease to look back upon thosic whom v/e have left behind ; new contests are engaged in, new prospects uiiibld themselves ; a succession of struggles is kept u}), whilst there is a rival lei't within the com- pass of our views and profession ; and when there is none, the pleasure, with the pursuit, is at an cjid.

II. We have seen what happiness does not consist in. We are next to consider in what it does consist.

In the conduct of life, the great matter is, to know beforehand what will please us, and what pleasure will hold out. So far as we know this, our choice will be justified by the event. And this knowledge is more scarce and difficult than at first sight it may seem to be ; for sometimes pleasures which are wonderful- ly alluring and flattering iti the prospect, turn out. in the posses- sion extremely insipid, or do not hold out as we expected ; at other times, pleasures start up which never entered into our cal- culation, and which we might have missed of by not foreseeing ; from whence we have reason to believe, that we actually do miss of many pleasures from the same cause. I say, to know " beforehand ;" for, after the experiment is tried, it is com- monly impracticable to retreat or change ; beside that shilling and changing is apt to generate a habit of I'estlessness, which is destructive of the happiness of every condition.

By reason of the original diversity of taste, capacity, and con- ■stitution, observable in the human species, and the still greater variety which habit and fashion have introduced in these partic- ulars, it is impossible to propose any plan of happiness which will succeed to a!!, or any method of life which is univei-sally eligible or practicable.

All that can be said is, that there remains a presumption in iavour of tliose couditiuns of life, in which men generally ap-

40 HUMAN JIAPPINLS^.

pear moft dicrrlul and contented. For though the apparent ha|)piness ot'inankimi Ije not always a true measure of their real happiness, it is the best measure we have.

Taking this for my guide, I am inclined to believe that hap- piness consists,

I. In the exercise of the social affections.

Those persons commonly possess good spirits, who have about them many objects of affection and endearment, as wife, chil- dren, kindred, friends. And to the want of these may be ini- pulcid the peevishness of monks, and of such as lead a monastic life.

Of the same nature with the indulgence of our domestic affec- tions, and equally refreshing to the spirits, is the pleasure which results from acts of bounty and beneiicence, exercised either in giving mcney, or in imparting to those who want it the assistance of our skill and profession.

Another main article of human happiness is,

II. The exercise of our faculties, either of body or mind, in the pursuit of some engaging end.

It seems to be true, that no plenitude of present gratifications can make the possessor happy for a continuance, unless he have something in reserve, — something to hope for, and look forward to. This I conclude to be the case, from comparing the alacrity and spirits of men who are engaged in any pursuit which interests Ihem, with the dejection and ennui of almost all, who are either born to so much that they want nothing more, or who have vsed vp their satisfactions too soon, and drained the sources of them.

It is this intolerable vacuity of mind which carries the rich and great to the horse-course and the gamiiig-t:ible ; and often engages them in contests and {)ursuils, of which the success bears no proportion to the solicitude and expense with which it is sought. An election for a disputed borough shall cost the parties twenty or thirty thousand pounds each, — to say nothing of the anxiety, humiliation, and fatigue of the canvass ; when a scat in the House of Commons, of exactly llie same value, may

HUMAN HAPPINESS. 41

be had for a tenth part of the money, and with no trouble. 1 do not mention this to blame the rich and great, (perhaps they cannot do better,) but in confirmation of what I have advanced.

Hope, which thus appears to be of So much importance to our happiness, is of two kinds ; — where there is something to be done towards attaining the object of our hope, and where there is nothing to be done. The first alone is of any value ; the lat- ter being apt to corrupt into impatience, having no power but to sit still and wait, which soon grovvs tiresome.

The doctrine delivered under this head may be readily ad- mitted ; but how to provide ourselves with a succession of pleas- urable engagements, is the difficulty. This requires two things ; judgment in the choice of ends adapted to our opportunitieSj jtnd a command of imagination, so as to be able, when the judgment has made choice of an end, to transfer a pleasure to the means ; after which, the end may be forgotten as soon as we will.

Hence those pleasures are most valuable, not which are most exquisite in the fruition, but most productive of engagement and activity in the pursuit.

A man who is in earnest in his endeavours after the happiness of a future state, has, in this respect, an advantage over all the world ; lor he has constantly before his eyes an object of supreme importance, productive of perpetual engagement and activity, and. of which the pursuit (which can be said of no pursuit be- sides) lasts him to his life's end. Yet even he must have many ends, besides ihefar end ; but then they will conduct to that, be subordinate, and in some way or other capable of being referred to that, and derive their satisfaction, or an addition of happiness, from that.

Egagenient is every thing : the more significant, however, our engagements are, the better : such as the planning of laws, in- stitutions, manufactures, charities, improvements, public works ; and the endeavouring, by our interest, address, solicitations, and activity, to c,irry them into effect : or upon a smaller scale; the 6

42. HUMAN IIAPHNES5.

procuting of n nviintenance anil fortune for our familira by a course of industry and application to our callings, which forms and gives motion to the common occupations of life ; training up a child ; prosecuting a scheme for his future establishment ; making ourselves masters of a language or a science ; improv- ing or managing an estate; labouring after apiece of prefer- ment : and lastly, atiy engagement which is innocent, is better than none ; as the writing of a book, the building of a house, the laying out of a garden, the digging of a fish-pond, — even the raising of a cucumber or a tulip.

Whilst the mind is taken up with the objects or business be- fore it, we are commonly happy, whatever the object or business be ; wh<-n the mind is absc7it, and the thoughts are wandering to something else than what is passing in the place in which we- are, we are often miserable.

III. Happiness depends upon the .prudent constitution of the habits.

The art in which the secret of human happiness in a great meas- ure consists is, to set the habits in such a manner, that every change may be a change for the better. The habits themselves are much the same ; for, whatever is made habitual becomes smooth, and easy, and indifferent. The return to an old habit is likewise easy, whatever tlie habit be. Therefore the advan- tage is with those habits which allow of an indulgence in the de- viation from them. The luxurious receive no greater pleasure from their dainties, than the peasant does from his bread and cheese : but the peasant, whenever he goes abroad, finds a feast ; W'hereas the epicure must be well entertained, to escape disgust. Those who spend every day at cards, and those who jTO every day to plough, pass their time much alike ; intent up- on what they are about, wanting nothing, regretting nothing, they are both in a state of ease : but then, whatever suspends the occupation of the card player, distresses him ; whereas to the labourer, every interruption is a refreshment : and this appear^- ifiihe different effects that Sunday produces upon the two, which

HUMAN HAPPINESS. 4S

'|wrm'es a day of recreation to the one, but a lamentable burthen .^o the other. The man who has learned to live alone, feels his spirits-enlivened whenever he enters into company, and takes Jiis leave without regret ; another, who has long been accus- tomed to a crowd, or continual succession of company, experi- ences in company no elevation of spirits, nor any greater satis- facfion than what the man of a retired life finds in his chiraney- ■corner. So far their conditions are equal : but let a change of place, fortune, or situation, separate the companion from his -circle, his visitors, his club, con)mon room, or cotTee-house, and the difiference and advantage in th(; choice and constitution of the two habits will show itself. Solitude comes to the one clothed with melancholy ; to the other, it brings liberty and quiet. You will see the one fretful and restless, at a loss how to dispose of his time, 4ill the hour comesround when he may forget himseii in bed ; the other, easy and satisfied, taking up his book or hie pipe, as soon as he finds himself alone, ready to admit any little .amusement that casts up, or to turn his hands and attention to the first business that presents itself; or content, without either, to sit still, and let his train of thought glide indolently through his brain, without much use perhaps, or pleasure, but without han- Jcering after any thing better, and without irritation. A reader, who has inured himself to books of science and argumentation, if a novel, a well written pamphlet, an article of news, a narrative of a curious voyage, or the journal of a traveller, fall in his way, ^its down to the repast with relish, enjoys hLs entertainment while it lasts, and can return, when it is over, to his graver reading, without distaste. Another, with whom nothing will go down but works of humour and pleasantry, or whose c«riosily must be in- terested by perpetual novelty, will consume a bookseller's window in half a forenoon; during which time he is rather in search of diversion than diverted ; and as books to his taste are few, and short, and rapidly read over, the stock is soon exhaust- ed, when he is left without resource from this piinciplc supplw af ianoceat amusement.

44 HUMAN HAPPINTJ?S.

So far as circumstances of fortune conduce to hnppinoss, it is* not the income which any man possesses, but the increase of income, tliat affords the pleasure. Two j)ersons, of whom one begins nith a hundrexi, and advances his income to a thousand pounds ?i-year, and the other sets off with a thousand, and dwin- dles down to a hundred, may, in the course of their time have the receipt and spending of the same sui;n of money ; yet their satisfaction, so far as fortune is concerned in it, will be very dif- fercHt ; the series and sum total of their incomes being the same, it makes a wide difference at which end they begin.

IV. Happiness consists in health.

By health 1 understand, as well freedom from bodily distem- pers, as that tranquility, firmness, and alacrity of mind, which we' call good spirits ; and which may properly enough be inclu- ded in our notion of health, as depending commonly upon the same causes and yiel-ding to the same management, as our bodi-r ]y constitution.

Health, in this sense, is the one thing needful : Therefore no pains, expense, or self-denial, or restraint which we submit to for the sake of it, is too much. Whether it require us to relin- quish lucrative situations, to abstain from favourite indulgences, to control intemperate passions, or undergo tedious regimens ; whatever difficulties it lays us under, a man who pursues his happiness rationally and resolutely, will be content to submit to.

When we are in perfect health and spirits, we feel in our- selves a happiness independent of any particular outward grat- ' ification whatever, and of which we can give no account. This is an enjoyment which the Deity has annexed to life ; and prob- ably constitutes, in a great measure, the happiness of infants and brutes, especially of the lower and sedentary orders of an- imals, as of oysters, periwinkles, and the like ; for which I havt sometimes been at a loss to find out amusement.

The above account of human happiness will justify the two fol- lowing conclusions, which, although fpund in most books of mo- ralitj>, have seldom been supported by any sufficient reasons :—

VIRTUE. 45

First, That happiness is pretty equally distributed amongst the different orders of civil society.

Secondly, That vice has no advantage over virtue, even with respect to this \yorld's happiness.

CHAPTER Vn.

VIRTUE.

VIRTUE is " the doing good to mankind, in obedience to '^' the will of God. and for the sake of everlasting happiness.^''

According to which definition, the " good of mankind" is the subject ; the " will of God" the rule ; and " everlasting happi- " ness," the motive of human virtue.

Virtue has been divided by some into benevolence, prtidcnee, fortitude, and temperance. Benevolence proposes good ends ; prudence suggests the best means of attaining them ; fortitude enables us to encou'iter the difficulties, dangers, and discourage- ments, which stand in our way in the pursuit of these ends ; tem- perance repels and overcomes the passions that obstruct it. Be- nevolence, for instance, prompts us to undertake the cause of an oppressed orphan ; prudence suggests the best means of going about it ; fortitude enables us to confront the danger, and bear up against the loss, disgrace, or repulse, that may attend our un- dertaking ; and temperance keeps under the love of money, of (ease, or amusement, which might divert us I'rom it.

Virtue is distinguished by others Into two branches only, — prudence and benevolence ; prudence, attentive to our own inter- est ; benevolence, to that of our fellow-creatures : both direct- ed to the same end, the increase of happiness in nature ; anU taking equal concern in the future as in the present.

The four cardinal virtues are, — prudence, forlitvde, temper. (ince, and justice.

46 • VIRTUE.

But the division of Virtue, to whicli we are now-a-dayo most accustomed, is into duties, —

Towards God ; as piety, reverence, resignation, gratitude, &c.

Towards other men; (or relative duties ;) as justice, charity^ fidelity, loyalty, &c.

Towards ourselves; as chastity, sobriety, temperance, preser- vation of* life, care of health, ^'c.

There are more of these distinctions, which it is not worth while to set down.

I shall proceed to state a few observations, which relate to the general regulation of human conduct, unconnected indeed with each other, but very worthy of attention : and which fall as properly under the title of this chapter as of any other.

I. Mankind act more from habit than reflection.

It is on few only and great occasions that men deliberate at all ; on fewer still, that they institute any thing like a regular inquiry into the moral rectitude or depravity of what they are about to do ; or wait for the result of it. We are for the most part determined at once ; and by an impulse Avhich is the efFccl and energy of pre-established habits. And this constitutioo seems well adapted to the exigences of human life, and to the imbecility of our moral principle. In the current occasions and rapid opportunities of life, there is oftentimes little leisure for re- flection ; and were there more, a man, who has to reason about, his duty, when the temptation to transgress it is upon him, is al^ most sure to reason himself into an error.

If we are in so great a degree j)assivc under our habits, where, 'it is asked, is the exercise of virtue, the guilt of vice, or any use of moral and religious knowledge ? I answer, in i\ic forming end contracting of these habits.

And from hence results a rule of life of considerable import- ance, viz. that many things are to be done and abstained from, solely for the sake of habit. We will explain ourselves by an example or two : — A beggar, with the appearance of extreme distress, asks our charity. If we come to argue the matter,-

viRttJt:. 4t

iihether the distress be real, whether it be not brought upon himself, whether it be of public advantage to admit such appli- cations, whether it be not to encourage idleness and vagrancy, whether it may not invite impostors to our doorS, whether the money can be well spared, or might not be better applied : when these considerations are put together, if may appear very doubtful, whether we ought or ought not to give any thing. But when we reflect, that the misery before our eyes excites our pity, whether we will or not ; that it is of the utmost consequence to us to cultivate this tenderness of mind ; that it is a quality, cher- ished by indulgence, and soon stifled by opposition ; when this, I say, is considered, a wise man will do that for his own sake, which he would have hesitated to do for the petitioner's ; he will fiive way to his compassion, rather than offer violence to a habi?. of so much general use. -

A man of confirmed good habits will act in the same manner without any consideration at all.

This may serve for one instance ; another is the following : — ■ A man has been brought up from his infancy with a dread of ly- ing. An occasion presents itself, where, at the expense of a lit- tle veracity, he may divert his company, set off his own wit with advantage, attract the natice and engsge the partiality of all about him. This is not a small temptation. And when he fooks at the other side of the question, he sees no mischief that can ensue from this liberty, no slander of any man*s reputation, no prejudice likely to arise to any man's interest. Were there nothing furthe'r to be considered, it would be difficult to show why a man under such circumstances might not indulge his hu- mour. But when he reflects, that hi« scruples about lying have h^itherto preserved him free from this vice ; that occasions like the present will return, where the inducement may be equally strong, but the indulgence much less innocent ; that his scru- ples will wear away by a few transgressions, and leave him sub- ject to one of the meanest and most pernicious of all bad habits, —a habit of lying whenever it will serve bis turn. When aU

48 VIRTUE.

this, I say, is considered, a wise man will forego the present, of a much greater pleasure, rather than lay the foundation of a char- acter so vicious and contemptible.

From what has been said may be explained also tl)e nature of habitual virtue. By the definition of Virtue, at the beginning of this chapter, it appears, that the good of mankind is the sub- ject, the will of God the rule, and everlasting happiness the mo- tive and end of all virtue. Yet, a man shall perform many an act of virtue, without having either the good of mankind, the will of God, or everlasting happiness in his thoughts ; just as a man may be a very good servant, without being conscious, at every turn, of a regard to his master's will, or of an express attention to his interest ; and your best old servants are of this sort : but then he must have served for a length of time under the ac- tual direction of these motives, to bring it to this ; in which ser- vice his merit and virtue consist.

There are habits, not only of drinking, swearing, and lying, and of some other things, which are commonly acknowledged to be habits, and called so ; but of every modification of ac- tion, speech, and thought. Man is a bundle of habits.

There are habits of industry, attention, vigilance, advertency ; of a prompt obedience to the judgment occurring, or of yield- ing to the first impulse of passion ; of extending our views to the future, or of resting upon the present ; of apprehending, methodizing, reasoning ; of indolence and dilatoriness ; of van- ity, self-conceit, melancholy, partiality ; of fretfulness, suspi- cion, captiousness, censoriousness ; of pride, ambition, covetous- ness ; of over-reaching, intriguing, projecting ; in a word, there is not a quality or fuuction, either of body or mind, which doe? not feel the influence of this great law of animated nature.

II. The Christian religion has not ascertained the precise quantity of virtue necessary to salvation.

This has been made an objection to Christianity ; but with- out reason. For,"'as all revelation, however imparted original- ly, must be transmitted by the ordinary vehicle of language, it

VtRTUa 49

behoves those who make the objection, to show, that any form of words could be devised, which might express this quantity; or that it is possible to constitute a standard of moral attain- ments, accommodated to the almost infinite diversity which sub- sists in the capacities and opportunities of different men.

It seems most agreeable to our conceptions of justice, and is consonant enough to the language of Scripture,* to suppose, that there are prepared for us rewards and punishments, of all possi- ble degrees, from the most exalted happiness down to extreme misery ; so that " our labour is never in vain ;" whatever ad- vancement we make in virtue, we procure a proportionable ac- cession of future happiness ; as, on the other hand, eveiy accu» mulation of vice is the " treasuring up of so much wrath against " the day of wrath." It has been said, that it can never be a just economy of Providence, to admit one part of mankind into lieaven, and condemn the other to hell ; since there must be very little to choose, between tlje worst man who is received into heaven, and the best who is excluded. And bow know we, it might be answered, but that there may be as little to choose in their conditions ?

Without entering into a detail of Scripture morality, which would anticipate our subject, the following general positions may be advanced, I think, with safety.

* " He which soweth sparingly, shall reap also sparingly ; and he which "soweth boiiutifully, shall reap also bountifully." 2 Cor. ix. 6. — "And *' that servant which knew his Lord's will, and prepared not himself, "neither did according' to his will, shall be beaten with many stripes: "but he that knew not, shall be beaten with few stripes," Luke, xii. 47, 48. — " Whosoever shall give you a cup of water to drink in my name, "because ye belong to Christ ; verily I say unto you, he shall not loss "his reward ;" to wit, intimating that there i^.in reserve a proportionable reward for even tlie smallest act of virtue. Mark, is. 41. — See also the parable of the pounds, Luke, xix. 16, &;c. ; where he whose pound had gained ten pounds, was placed over ten cities ; and he whose pound had gained five pounds, was placed ovet five citieS. 7

30 VIRTUE.

1. That a slate of happiness is not to be expected hy those who are conscious of no moral or religious rule. 1 mean those who cannot with truth say, that ihej have been prompted to one action, or witliheld from one gratilication, by any regard to vir- tue or religion, either immediate or habitual.

There needs no other proof of -this, than the consideration, that a brute would be as proper an object of reward as such a man, and that, if the case were so, the penal sanctions of reli- gion could have no place. For, whom would you punish, if yoir make such a one as this happy ? — or rather indeed religion it- sell', both natural and revealed, would cease to have either use or authority.

2. That a state of happiness is not to be expected by those who reserve to themselves the habitual practice of any one sin> or neglect of one known duty.

Because, no obedience can proceed upon proper motives, which is not universal ; that is, which is not directed to every command of God alike, as they all stand upon the same au- thority.

Because such an allowance would, in effect, amount to a tol- eration of every vice in the world.

And because, the strain of Scripture language excludes any- such hope. When our (iH/tei- are recited, they are put collec- tively, that is, as all and every of them required in the Chris- tian character. " Add to your faidi virtue, and to virtue knowl- " edge, and to knowledge temperance, and to temperance pa- " tience, and to patience godliness, and to godliness brotherly "kindness, and to brotherly kindness charity."* On the other hand, when ■uiVfi are enumerated, they are putdisjwictivehj, thaS is, as separately and severally excluding the sinner from heav- en. ^^ Neither fornicators, nor idolaters, nor adulterers, nor et'- " feminate, nor abusers of themselves with mankind, nor thieves, " nor covetous, nor drjukards, nor revilers, nor extortioneri-, " shall inherit the kingdom of heaven."!

* 2 Pet. i. 5, 6, 7. t 1 Cor. vi. 9, 10.

VIRTUE. 5J

Those texts of Scripture which seem to lean a contrary way, TtS "that charity shall cover the multitude of sins ;"* that " he *' which converteth a sinner from the error of his way, shall hide "a multitude of sins ;"t cannot, I think, for the reasons above- mentioned, be extended to sins deliberately and obstinately per- sisted in.

3. That a state of mere unprofitableness will not go unpun- ished.

This is expressly laid down by Christ, in the parable of the talents, which supersedes all further reasoning about the matter. " Then he which had received one talent, came and said. Lord, " I know thee that thou art an austere msn, reaping where thou " hast not sown, and gathering where thou hast notstrawod ; and " I was afraid and hid thy talent in the earth : Lo, there thou *' hast that is thine. His lord answered and said unto him, Thou *' wicked and slothful servant, thou knewest (or knewest 'thou 1) " that I reap where I sowed not, and gather where I have not *' strawed ; thou oughtest therefore to have put my money to *' the exchangers, and then at my coming I should have receiv- " ed mine own with usury. Take therefore the talent from him, " and give it unto him which hath ten talents : for unto every " one that hath shall be given, and he shall have abundance ; " but from him which hath not shall be taken away even that ' which he hath ; and cast yc that iinprofUahle servant into out- " er darkness, there shall be weeping and gnashing of teeth. '''''^_

III. In every question of conduct, where one side is doubtful, and the other side safe, we are bound to take the safe side.

This is best explained by an instance ; and I know of none more to our purpose than that of suicide. Suppose, for exam- ple's sake, that it appear doubtful to a reasoner upon the sub- ject, whether he may lawfully destroy himself. He can have Jio doubt but that it is lawful for him to let it alone. Here there- fore is a case, in which one side is doubtful, and the other side safe. By virtue therefore of our rule, he is bound to pur&!«

= ■ 1 Pet. iv, 8. t James, v. 20. t Matt. xxv. 24 Ac

62 VIRTUE.

the safe side, that is, to forbear from offering violence to himself, whilst a doubt remains upon his mind concerning the lawfulness of suicide.

It is prudent, you allow, to take the safe side. But our 6\)- scrvaticn means something more. We assert that (he action, concerning which we doubt, whatever it may be in itself, or to an- other, would, in vs, whilst this doubt remains upon our minds, be certainly sinful. The case is expressly so adjudged by Saint Paul, with whose authority we will for the present rest content- ed.— " I know aud am persuaded by the Lord Jesus, that there " is nothing unclean of itself; but to him that esteemeth any ihing ** to be unclean, to him it is unclean. — Happy is he that condem- " neth not himself in that thing which he allowcth : and he that *' doubteth is damned (^condemned) if he eat, for whatsoever is " not of faith. (?'. e. not done with a full persuasion of the lawful-r " ness of it) is sin.'"^

* Rom. xiy. 14. 22, 23,

BOOK II.

MORAL OBLIGATION.

CHAPTER I.

THE QUESTION, WHY AM I OBLIGED TO KEEP MY WORD ? CONSIDERED.

WHY am I obliged to keep my word ?

Because it is right, says one. — Because it is agreeable to the fitness of things, says anotiier. — Because it is conformable to reason and nature, says a third. — Because it is conformable to truth, says a fourth. — Because it promotes the public good, says a fifth. — Because it is required by the will of God, con» eludes a sixth.

Upon which different accounts two things are observable :—

First, That they all ultimately coincide.

The fitness of things, means their fitness to produce happi- ness ; the nature of things, means that actual constitution of the world, by which some things, as such and such actions, for ex- ample, produce happiness, and others misery ; reason is th-e principle by which we discover or judge of this constitution; truth is this judgment expressed or drawn out into propositions. So that it necessarily comes to pass, that what promotes the pub- lic happiness, or happiness upon the whole, is agreeable to the fitness of things, to nature, to reason, and to truth ; and such (as will appear by-and-by) is the divine character, that what pro-

54 MORAL OBLIGATION.

molps the general happiness is required by the will of God, nnd nhat has all the above properties, must needs be right ; for right means no more than conformity to the rule we go by, whatever that rule be.

And this is the reason that moralists, from whatever different principles they set out, commonly meet in their conclusions ; that is, they enjoin the same conduct, prescribe the same rules of duty, and, with a few exceptions, deliver upon dubious cases, the same determinations.

Secondly, It is to be observed, that these answers all leave the matter short; for the inquirer may turn round upon h\% teacher with a .second question, in which he will expect to be satisfied, namely, why am I obliged to do what is right ; to act agreeably to the fitness of things ; to conform to reason, nature or truth ; to promote the public good ; or to obey the will of God?

The proper method of conducting the inquiry is, FrnsT, To examine what we mean, when we say a man is obliged to do any thing; and then to show why he is obliged to do the thing which we have proposed as an example, namely, " to keep hi? word."

CHAPTER n.

WHAT WE MEAN WHEN WE SAY A MAN 15 OBLIGED TO DO A THING.

A MAN is said to be ohliged^ " when he is urged by a violent *' motive resulting from the command of another.''^

First, " The motive must be violent." If a person, w!ioh.iR done me some little service, or has a small place in his disposal, ask me for my vote upon some occasion, I may possibly give it him from a motive of gratitude or expectation ; but I should

MORAL OBLIGATION. 55

hardly say that I was obliged to give it him, because the induce- ment does not rise high enough. Whereas, if a father or a mas- ter, any great benefactor, or one on whom my fortune depends, require my vote, I give it him of course ; and my answer to all who ask me why I voted so and so, is, that ray father or my mas- ter obliged me ; that I had received so many favours from, or had so great a dependance upon such a one, that I was obliged to vote as he directed me.

Secondly, " It must result from the command of another." Offer a man a gratuity for doing any thing, for seizing, for ex- ample, an offender, he is not obliged by your offer to do it ; nor would he say he is, though he may be induced, persuaded, pre- vailed upon, tempted. If a magistrate, or the man's immediate superior, command it, he considers himself as obliged to com- ply, though possibly he would lose less by a refusal in this case than in the former. ' I will not undertake to say, that the words ohligatioti and obliged are used uniformly in this sense, or always with this dis- tinction ; nor is it possible to tie down popular phrases to any constant signification ; but, wherever the motive is violent enough, and coupled with the idea of command, authority, law, or the will of a superior, there, I take it, we ahvays reckon our- selves to be obliged.

And from this account of obligation it follows, that we can be obliged to nothing but what we ourselves are to gain or lose something by ; for nothing else can be a " violent motive" to us. As we should not be obliged to obey the laws, or the ma- gistrate, unless rewards or punishments, pleasure or pain, some- how or other depended upon our obedience ; so neither .-should we, without the same reason, be obliged to do what is right, to practise virtue, or to obey the commands of God.

66 MORAL OBLIGATION.

CHAPTER Ilf.

TflE QUESTION, WHY AM I OBLIGED TO KEEP MY WORD ? RESUMED.

LET it be remembered, tl)at to be obliged, " is to be urged " bj a violent motive, resulting from the command of another."

And then let it be asked. Why am I obliged to keep my word ? and the answer will be, Because I am " urged to do so by a vi- " olent motive," (namely, the expectation of being after this life rewarded if 1 do, or punished for it if 1 do not,) " resulting " from the command of another," (namely, of God.)

This solution goes to the bottom of the subject, as no further question can reasonably be asked.

Therefore, private happiness is our motive, and the will of God our rule.

When I first turned my thoughts to moral speculations, an air of mystery seemed to hang over the whole subject ; which arose, I believe, from hence,— -that I supposed, with ma- ny authors whom I had read, that to be obliged to do a thing, was very different from being induced only to do it ; and that the obligation to practise virtue, to do what is right, just &c. was quite another thing, and of another kind, than the obligation which a soldier is under to obey his officer, a servant his master, or any of the civil and ordinary obligations of human life. Whereas from what has been said it a[qiears, that moral obliga- tion is like all other obligations ; and that obligation is nothing more than an inducement of sufficient strength, and resulting in someway from the command of another.

There is always understood to be a difference between an act of prudence and an act of duty. Thus, if I distrusted a man who owed me money, I should reckon it an act of prudence to get another bound with hin> : but 1 should hardly call it an act of duty. On the other hand, it would be tUougbt a very unusual

MORAL OBLIGATION. 57

and loose kind of language to say, that, as 1 had made such a promise, it was prudent to perform it: or that, as my friend, when he went abroad, placed a box of jewels in my hands, it would be prudent in me to preserve it for him till he returned.

Now, in what, you will ask, does the difference consist ? inas- much as, according to our account of the matter, both in the one case and the other, in acts of duty as well as acts of prudence, we consider solely what we shall gain or lose by the act.

The difference, and the only difference, is this, that, in the one case, we consider what we shall gain or lose in the present world : in the other case, we consider also what we shall gain or lose in the world to come.

Those who would establish a system of morality, independ- ent of a future state, must look out for some different idea of moral obligation, unless they can show that virtue conducts the possessor to certain happiness in this life, or to a much greater share of it than he could attain by a different behaviour. / To us there are two great questions :

I. Will there be after this life any distribution of rewards and punishments at all ?

II. If there be, what actions will be rewarded, and what will be punished ?

The first question comprises the credibility of the Christian religion, together with the presumptive proofs of a future retri- bution from the light of nature. The second question compris- es the province of morality. Both questions are too much for one work. The affirmative, therefore, of the first, although we confess that it is the foundation upon which the whole fabric rests, must in this treatise be taken for granted.

5S THE WILL OF GOD".

CHAPTER IV.

tHE WILL OF GOD.

As the will of God is our rule, to inquire what is our dutj^ ill- what we are obliged to do, in any instance, is, in effect, to inquire, what is the will of God in that instance, which conse- quently becomes the whole business of morality.

Now, there are two methods of coming at the will of God or ix\y point :

I, By" his express declaration?, when they are to be had, ivhicb must be sought for in Scripture.

II. By what we can discover of his designs and disposition from his works ; or, as we usually call it., the light of nature.

And here we may observe the absurdity of separating natural and revealed religion from each other. The object of both is the same, to discover the will of God, — and, provided we do but discover it, it matters nothing by what means.

An ambassador, judging only from what he knows of his sov- reign's disposition, and arguing from what he has observed of his conduct, or is acquainted with of his designs, may take his measures in many cases with safety, and presume with great probability how hi:^ master would have liim act on most occa- sions that arise ; but if he have his commission and instructions in his pocket, it would be strange never to look into them. He will naturally conduct himself by both rules ; when his instruc- tions are clear and positive, there is an end of all farther deliber- ation ; (unless, indeed, he suspect their authenticity ;) where his instructions are silent or dubious, he will endeavour to supply or explain them, by what he has been able to collect from other quarters of his master's general inclinations or intensions.

Mr. Hume, in his fourth Appendix to his Principles of Mor- als, has been pleased to complain of the modern scheme of uni-

THE WILL OF GOD. 59

iting Ethics with the Christian Theology. Those who find them- selves disposed to join in this complaint, will do well to observe what Mr. Hume himself has been able to make of morality without this union. And for that purpose let them read tlie sec- ond part of the ninth section of the above essay, which part contains the practical application of the whole treatise, — a trea- tise, which Mr. Hume declares to be " incomparably the best ■" he ever wrote." When they have read it over, let them con- sider, whether any motives there proposed are likely to be found sufficient to withhold men from the gratification of lust, re* venge, envy, ambition, avarice, or to prevent the existence of these passions. Unless they rise up from this celebrated essay with very different impressions upon their minds than it ever left upon mine, they will acknowledge the necessity of additjoaal sanctions. But the nescssity of these sanctions is not -now the question. If they be in fact established, if the rewards and punishments held forth in the Gospel will actually come to pass., they must be considered. Those who reject the Christian re- ligion are to make the best shift they can to fcuild up a system, and lay the foundations of morality without it. But it appears to me a great inconsistency in those who receive Christianity, and expect something to come of it, to endeavor to keep all such expectations out of sight in their reasonings concerning hu- man duty.

'' The method of coming at the will of God concerning ^ny ac- / tion, by the light of nature, is to inquire into " the tendency of , " the action to promote or diminish the general happiness." This rule proceeds upon the presumption, that God Almighty wills and wishes the happiness of his creatures ; and, conse- quently, that those actions which promote that will and wish, must be agreeable to hina % acd the contrary.

As this presumptioa is tfee foundation of the whole system, 5t ^ecGmes necessary to explain the reasons ppon which it rests

GO THE DIVlf^E BENEVOLENCE.

CHAPTER V.

THE DIVINE BENEVOLENCE.

When God created the human species, either b^ wislied their happiness or he wished their misery, or he was iiidifTcrent and unconcerned about both.

If he had wished our misery, he might have made sure of his purpose, hy forming our senses to be as many sores and pains to us, as they are now instruments of gratification and enjoyment ; or by placing us amidst objects so ill-suited to our porccj)(ions, as to have continually offended us, instead of ministering to our re- freshment and delight. lie might have made, for example, ev- ery thing we tasted bitter ; every thing we saiv loathsome ; ev- ery thing we touched a sting ; every smell a stench ; and every sound a discord.

If he had been indifferent about our happiness or misery, we must impute to our good fortune, (as all design by this supposi- tion is excluded,) both the capacity of our senses to receive pleasure, and the supply of e.xternal objects fitted to excite it.

But either of these (and still more both of them) being too much to be attributed to accident, nothing remains but the first supposition, that God, when he created the human species, wish- ed their happiness ; and made for them the provision which he has made, with that view, and for that purpose.

The same argument may be proposed in different terms, thus : Contrivance proves design ; and the predominant tendency of the contrivance indicates the disposition of tlio designer. The world abounds with contrivances ; and all the contrivances which we are acquainted with, are directed to beneficial purposes. Evil, no doubt, exists ; but it is never, that we can perceive, the object of contrivance. Teeth are contrived to eat, not to ache ; their aching now and then, is incidental to '.he contrivance, per*

THE DIVINE BENEVOLENCE. 61

baps inseparable from it : or even, if you will, let it be called a defect in the contrivance ; but it is not the object of it. This is a distinction which well deserves to be attended to. In describ- ing implements of husbandry, you would hardly say of a sickle, that it is made to cut the reaper's fingers, though from the con- struction of the instrument, and the manner of using it, this mis- chief often happens. But if you had occasion to describe in- struments of torture or execution, this, you would say, is to ex- tend the sinews ; this to dislocate the joints ; this to break the bones ; this to scorch the soles of the feet. Here, pain and misery are the very objects of the contrivance. Now, nothing of this sort is to be found in the works of nature. We never dis- cover a train of contrivance to bring about an evil purpose. No anatomist ever discovered a system of organization calculated to produce pain and disease ; or, in explaining the parts of the hu- man body, ever said, this is to irritate ; this to inflame ; this duct is to convey the gravel to the kidneys ; this gland to secrete the humour which forms the gout : If by chance he come at a part of which he knows not the use, the most he can say is, that it is useless ; no one ever suspects that it is put there to incom- mode, to annoy, or torment. Since then God hath called forth his consummate wisdom to contrive and provide for our happiness, and the world appears to have been constituted with this design at first, so long as this constitution is upheld by him, we must in reason suppose the same design to continue.

The contemplation of universal nature rather bewilders the mind than affects it. There is always a briglit spot in the pros- pect, upon which the eye rests ; a single example, perhaps, by which each man finds himself more convinced than by all others put together. I seem, for my own part, to see the benevolence of the Deity more clearly in the pleasures of very young chil- dren, than in any thing in the world. The pleasures of grown persons may be reckoned partly of their own procuring ; e.>pe- cially if there has been any industry, or contrivance, or pursuit, to come at them ; or if they are founded, like music, paiiiting,

G2 UTILITY.

&c. upon any qualificatiJn of their own acquiring. But tl»e pleasures of a healthy infant are so manifestly provided for it by another, and the benevolence of the provision is so unquestiona- ble^ that every child I see at its sport, affords to my mind a kind of sensible evidence of the finger of God, and of the disposition ^vhich directs it.

But the example which strikes each man most strongly, is the true example for him : and hardly two minds hit upon the same ; which shows the abundance of such examples about us.

We conclude, therefore, that .God wills and wishes the hap- piness of his creatures. And this conclusion being once estab- lished, v,e are at liberty to go on with the rule built upon it, namely, " that the method of coming at the will of God, con- " cerning any action, by the light o( nature, is to inquire into " the tendency of that action to promote or diminish the general "happiness."

CHAPTER \I.

UTILITY.

SO then actions arc to be estimated by (heir tendency to pro- fcnote happiness.* Whatever is expedient is right. It is the

* Actions in the abstract are right or wrong:, according to their tenden- cy; the agent is virtuous or vicious, according to his design. Thus, if the question be, "Whether relieving coramoa beggars be right or wrong? wc inquire into the tendency of such a conduct to the public advantage or incohvenience. If the question be, Whether a man remarkable for this sort of bounty is to be esteemed virtuous or vicious for that reason? we inquire into his design. Whether his liberality sprung from charity oi from ostentation ? It is evident that our cencern is with actiens iji th* abstract.

UTILITY. 63

Utility of any moral rule alone which constitute? the obligation of it.

But to all this there seems a plain objection, viz. that many actions are useful, which no man in his senses will allow to be right. There are occasion?, in which the hand of the assassin would be very useful : — The present possessor of some great estate employs his influence and fortune to annoy, corrupt, or oppress all about him. His estate would devolve, by his death, to a successor of an opposite character. It is useful, therefore, to despatch such a one as soon as possible out of the way ; as the neighbourhood would exchange thereby a pernicious tyrant for a wise and generous benefactor. It may be useful to rob a miser, and give the money to the poor ; as the money, no doubt, would produce more happiness, by being laid out in food and clothing for half a dozen distressed families, than by continuing locked up in a miser's chest. It may be useful to get possession of a place, a piece of preferment, or of a seat in Parliament, by bribery or false swearing ; as by means of them we may serve the public more effectually than in our private station. What then shall we say ? Must we admit these actions to be right, which would be to justify assassination, plunder, and perjury ; or must we give up our principle, that the criterion of right is utility ?

It is not necessary to do either.

The true answer is this ; that these actions, after all, are not useful, and for that reason, and that alone, are not right.

To see this point perfectly, il must be observed that the bad consequences of actions are twofold, particular and general.

The particular bad consequence of an action, is the mischief which that single action directly and immediately occasions.

The general bad consequence is, the violation of some neces- sary or useful general rule.

Thus, the particular bad consequence of the assassination above described, is the fright and pain which the deceased un- derwent ; the loss he suffered of life, which is as valuable to a had man as to a good one, or more so ; the prejudice and afflic-

64 THK NECESSITY OF GENEIIAI. RULES.

lion, of which his death was the occasion, to his family, friends, and dependants.

The general bad consequence is the violation of this necessary general rule, that no man be put to death for his crimes, but by public autiu)rity.

Although, therefore, such an action have no particular bad consequences, or greater partieular good consequences, yet it is not useful, by reason of the general consequence, Avhich is evil, and which is of more importance. And the same of the other two instances, aiul of a million more, which might be mentioned.

But as this solution supposes, that the moral government of the world must proceed by general rules, it remains that we show the necessity of this.

CHAPTER VII.

THE NECESSITY OF GENERAL RULES.

YOU cannot permit one action and forbid another, without showing a difference betwixt them. — Therefore, the same sort of actions must be generally permitted, or generally forbidden. Where, therefore, the general permission of them would be per- nicious, it becomes necessary to lay down and support the rule which gem;rally forbids them.

Thus, to return once more to the case of the assassin. The assassin knocked the rich villain on th;>head, because he thought him better out of the way than in it. If you allow this excuse in the present instance, you must allow it to all who act in the same manner, and from the same motive ; that is, you must al- low every man to kill any one he meets, whom he thinks nox- ious or useless ; which, in the event, would be to commit every man's life and safety to the spleen, fury, and fanatacism of his mMghI)our ; a disposition of affairs which would presently fill the

THE NtCESSITt OF GENERAL RULES, 65

woi-ld with misery and confusion ; and ere lonij put an end to human society, if not to tlie human species.

The necessity of general rules in human governments is ap- . parent : but whether the same necessity subsist in the Divine ' economy, in that distribution of rewards and punishments to 1 which a moralist looks forward, may be doubted^

I answer, that general I'ules are necessary to every moral government : and by moral government I mean any dispensation, whose object is to influence the conduct of reasonable creatures.

For if, of two actions perfectly similar, One be punished, and the other be rewarded or forgiven, which is the consequence of rejecting general rules, the subjects of such a dispensation would no longer know, either what to expect or how to act. Rewards and punishments would cease to be such — would become acci- dents. Like the stroke of a thunderbolt, or the discovery of a mine, like a blank or a benefit ticket in a lottery, they would occasion pain or pleasure when they happened ; but, following in no known order, from any particular course of action, thejr could have no previous influence or eflect upon the conduct.

An attention to general rules, therefore, is included in the rery idea of reward and punishment. Consequently, whatever reason there is to expect future reward and punishment at the hand of God, there is the same reason to believe, that he will proceed in the distribution of it by general rules.

Before we prosecute the consideration of general conse- quences any further, it may be proper to anticipate a reflection, which will be apt enough to suggest itself, in the progress of our argument.

As the general consequence of an action, upon which so much of the guilt of a bad action depends, consists in the example ; it should seem, that if the action be done with perfect secrecy, so as to furnish no bad example, that part of the guilt drops off. In the case of suicide, for instance, if a man can so manage matters as to take away his own life, without being known or suspected 9

66 TilE NECESSITY OF GENERAL RULES.

to have done if, lie is not chargeable with any mischief from the example; nor does his punishment seem necessary, in order to save the authority of any general rule.

In the ,^rs^ place, those who reason in this manner do not observe, that they are setting up a general rule of all others the least to be endured ; namely, that secrecy, whenever secrecy is practicable, will justify any action.

Were such a rule admitted, for instance, in the case above pro- duced, is there not reason to fear that people would be diaap-^ pearing perpetually ?

In the next place, I would wish them to be well satisfied about the points proposed in the following queries :

1. Whether the Scriptures do not teach us to expect that at the general judgment of the <vorld, the most secret actions will be brought to light ?*

2. For what purpose- can this be, but to make them the ob- jects of reward and punishment ?

3. Whether, being so brought to light, they will not fall un- der the operation of those equal and impartial rules, by which God will deal with his creatures ?

They will then become examples, whatever they be now ; and require the same treatment from the Judge and Governor of the moral world, as if they had been detected from the first.

*"Iathe day when God shall judg^e the secrets of men by Jesus *« Christ." Rom. xi. 16. — "Judge notliing before the time, until the " Lord come, who will bring to light the hidden things of darkness, anol ^^will make maoifest the couoieU of the heart." 1 Cor. ir. 5^

GENERAL CONSEQUENCES. «•?

CHAPTER VIII.

THE CONSIDERATION OF GENERAL CONSEQUENCES PURSUED.

/ THE general consequence of any action may be estimated, hy asking what would be the consequence if the same sort of actions were generally permitted. — But suppose they were, and a thousand such actions perpetrated under this permission, is it just to charge a single action with the collected guilt and mis- chief of the whole thousand ? I answer, that the reason for prohibiting and punishing an action, (and this reason may be called the guilt of the action, if you please,) w^ill always be in proportion to the whole mischief that would arise from the gener- al impunity and toleration of actions of the same sort.

" Whatever is expedient is right." But then it must be ex- pedient upon the whole, at the long run, in all its effects collat- tez'al and remote, as well as in those which are immediate and direct ; as it is obvious, that, in computing consequences, it makes no difference in what way, or at what distance, they ensue.

To impress this doctrine upon the minds of young readers, and to teach them to extend their views beyond the immediate mischief of a crime, I shall here subjoin a string of instances, in which the particular consequence is comparatively insignifi- cant, and v\'here the malignity of the crime, and the severity with which human laws pursue it, is almost entirely founded up- on the general consequence.

The particular consequence of coining is, the loss of a guin- ea, or of half a guinea, to the person who receives the counter- feit money : the general consequence (by which I mean the consequence that would ensue, if the same practice were gener- ?ilJy permitted,) is. to abolish Ibe use of money.

68 THE CONSIDERATION OF

The particular consequence of forgery is, a damage of tucnty or thirty pounds to the man who accepts the forged bill : the general consequence is, the stoppage of paper currency.

The particular consequence of sheep-stealing or horse-steal- ing is, a loss to the owner, to the amount of the value of the sheep or horse stolen : the general consequence is, that the land could not be occupied, nor the market supplied with this kind of stock.

The particular consequence of breaking into a house empty of inhabitants is, the loss of a pair of silver candle-sticks, or a few spoons : the general consequende is, that nobody could leave their house empty.

The particular consequence of smuggling may be a deduc- tion from the national fund too minute for computation : the gen- eral consequence is, the destruction of one entire branch of pub- lic revenue, a proportionable increase of the burthen upon other branches, and the ruin of all fair and open trade in the article smuggled.

The particular consequence of an officer's breaking his parole is, the loss of a prisoner, who was possibly not worth keeping ; the general consequence is, that this mitigation of captivity would be refused to all others.

And what proves incontestabl}-^ the superior importance of general consequences is, that crimes are the same, and treat- ed in the same manner, though the particular consequence be very different. The crime and fate of the house-breaker is the same, whether his booty be five pounds or fifty. And the reason is, that the general consequence is the same.

The want of this distinction between particular and general consequences, or rather the not sufficiently attending to the latter, is the cause of that perplexity we meet with in ancient moral- ists. On the one hand, they were sensible of the absurdity of pronouncing actions good or evil, without regard to the good or evil they produced. On the other hand, they were startled at the conelusions to which a steady adherence to the consequences

GENERAL CONSEQUENCES PURSUED. 69

seemed sometimes to conduct them. To relieve this difficulty, they contrived the ro ■srpsTs-ov or the honestum, by which terms they meant to constitute a measure of right, distinct from utility. Whilst the utile served them, t^at is, whilst it corresponded with their habitual notions of the rectitude of actions, they went by it. When they fell in with such cases as those mentioned in the sixth chapter, they took leave of their guid«, and resorted to the ho- nestum. The only account they could give of the matter was, that these actions might be useful : but, because they were not at the same time honesta, they were by no means to be deemed just or right.

From the principles delivered in this and the two preceding chapters, a maxim may be explained, which is in every man's mouth, and in most men's without meaning; viz. "not to do " evil, that good may come :" that is, let us not violate a general rule, for the sake of any particular good consequence we may expect. Which is for the most part a salutary caution, the ad- vantage seldom compensating for the violation of the rule. Strictly speaking, that cannot be " evil," from which "good " comes ;" but in this way, and with a view to the distinction between particular and general consequences, it may.

We will conclude this subject of consequences with the follow- ing reflection : A man may imagine, that any action of his, with respect to the public, must be inconsiderable ; so also is the agent. If his crime produce but a small effect upon the «?!?'- versal interest, his punishment or destruction bears a small pro- portion to the sum of happiness and misery in the creation- '

9« OF RIGHT.

CHAPTER IX.

OF RIGHT.

RIGHT and obligation are reciprocal ; that is, wherever there is a right in one person, there is a corresponding obliga- tion upon others. If one man has a " right" to an estate, others are "obliged" to abstain from it : if parents have a "right" to reverence from their children, children are "obliged" to rcv> erence their parents ; and so in all other instances.

Now, because moral obligation depends, as we have seen, up- on the will of God, right, which is correlative to it, must depend upon the same. Right therefore signifies the being consistent with the will of God.

If the divine will determines the distinction of right and wrong, what else is it but an identical proposition, to say of God, that he acts right? or how is it possible even to conceive that he should act wrong ? Yet these assertions are intelligible and significant. The case is this : By virtue of the two principles, that God wills the happiness of his creatures, and that the will of God is the measure of right and wrong, we arrive at certain conclu- sions ; which conclusions become rules ; and we soon learn to pronounce actions right or wrong, according as they agree or disa- gree with our rules, without looking any further : and when the habit is uuce established of stopping at the rules, we can go back and compare with these rules even the divine conduct itself ; and yet it may be true, (only not observed by us at the time,) that the rules themselves are deduced from the divine will.

Right is a ([uality of persons or of actions.

Of persons ; as when we say, such a one has a " right" t9 this estate ; parents have a " right" to reverence from their children ; the king to allegiance from his subjects ; masters have a "right" to their servant's labour; a man has not a " right" over his own life.

THE DIVISIOx^ or RIGHTS. 71

Of actions ; as in such expressions as the following : it is "right" to punish murder with death ; his behaviour on that oc- casion was '* right;" it is not "right" to send an unfortunate debtor to gaol ; he did or acted " right," who gave up his place, rather than vote against his judgment.

In this latter set of expressions, you may substitute the def- inition of right above given for the term itself; v. g. it is " con- *' sistent with the will of God" to punish murder with death ; — his behaviour on that occasion was " consitent with the will of **God ;" — it is not "consistent with the will of God" to send an unfortunate debtor to gaol ; — he did, or acted " consist- " ently with the will of God," who gave up his place rather than vote against his judgment.

In the former set you must vary the phrase a little, when yoQ introduce the definition instead of the term. Such a one has a " right" to this estate, that is, it is " consistent with the will of *'God" that such a one should have it ; — parents have a "right" to reverence from their children, that is, it is " consistent with " the will of God" that children should reverence their pa- rents ; — and the same of the rest.

CHAPTER X.

THE DIVISION OF RIGHTS,

RIGHTS, when applied to persons, are

Natural or adventitious :

Alienable or unalienable :

Perfect or imperfect. I. Rights are natural or adventitious.

Natural rights are such as would belong to a man, althoagfe there subsisted in the world, no civil government whatever.

72 THE DIVISION OF RIGHTS.

Adventitious rights are such as would not.

JVatural rights are, a man's right to his life, limbs, and liber tj ; his right to the produce of his personal labour ; to the use in common with others, of air, light, water. If a thousand differ- ent persons, from a thousand different corners of the world, were cast together upon a desert island, they would from the first be every one entitled to these rights.

Adventitious rights are, the right of a king over his subjects ; of a general over his soldiers ; of a judge over the life and lib- erty of a prisoner ; a right to elect or appoint magistrates, to impose taxes, decide disputes, direct the descent or disposi- tion of property : a right, in a word, in any one man, or partic- ular body of men, to make laws and regulations for the rest. For none of these rights would exist in the newly inhabited island. .,

And here it will be asked how adventitious rights are created ; or, which is the same thing, how any new rights can accrue from the establishment of civil society ? as rights of all kinds, we re- member, depend upon the will of God, and civil society is but the ordinance and institution of man. For the solution of this difficulty, we must return to our first principles. God wills the happiness of mankind, and the existence of civil society, as conducive to that happiness. Consequently, many things, which are useful for the support of civil society in general, or for the conduct and conservation of particular societies already estab- lished, are, for that reason, " consistent with the will of God," or " right," which, without that I'eason, i. e. without the estab- lishment of civil society, would not have been so.

From whence also it appears, that adventitious rights, though immediately derived from human appointment, are not, for that reason, less sacred than natural rights, nor the obligation to res- pect them less cogent. They both ultimately rely upon the same authority, the will ofGod. Such a man claims a right to a particular estate. He can show, it is true, nothing for his right, but a rule of the civil community to which he belongs ;

I'fiE Division of rights. 73

snd this rule may be arbitrary, capricious, and absurd. Not- withstanding all this, there would be the i^aine sin in disposses- ■iing the man of his estate by craft or violence, as if it had been assigned to hiin, iilie the partition of the country amongst the the twelve tribes, by the immediate designation and" appoint- ment of Heaven.

H. Rights are alienable or unalienable.

Which terms explain themselves.

The right we have to most of those th'ngs which ^ve call pi^p- erty, as houses, lands, money, &c. is alienable.

The right of a prince over his jieople, of a husband over his wife, of a master over his servants, is generally and naturally Hnalienable.

The distinction depends upon the mode of acquiring the right. If the right originate from a contract and be limited to the per- son by the express terms of the contract, or by the common in- terpretation of such contracts, (which is equivalent to an express stipulation,) or by a pergonal condition annexed to the right : then it is unalienable. In all other cases, it is alienable.

The right to civil liberty is alienable ; though, in the vehe- mence of men's zeal for it, and in the language of some [)olitical remonstrances, it has often been pronounced to be an unalienable right. The true reason why mankind hold in detestation the memory of those who have sold their liberty to a tyrant, is, that, together with their own, they sold commonly, or endangered, the liberty of others ; which certainly they had no right to dis- pose of.

III. Rights are perfect or imperfect.

Perfect rights may be asserted by force, or, what in civil soci- ety comes into the place of private force, by course of law.

Imperfect rights may not.

Examples of perfect rights. — A man's right to his life, person, house ; for, if these be attacked, he may repel the attack by in- stant violence, or punish the aggressor by law : a man's right to hi? estate, furniture, clothes, money, and to all ordinary articles 10

71 TIIK DI\ ISION OP RIGH1;<.

vi proporty ; for, if tlicy lie iiijiirioiisly taken from hin), lie may compel the author of the injiiry to make restitution or satisfaction.

Examples of imperfect rights. — In elections or a'ppoinlmonls to offices, where the qualifications are prescribed, the best qual- ified candidate Iws a right to success ; yet, if he be rejected, he has no remedy. lie can neither seize the office by ibrce, nor obtain redress at law ; his right tlierefore is imperfect. A poor ncigh!)our has a right to relief; yet, if it be refused him, he must not extort it. A benetactor has a right to returns of grati- tude from the person he has obliged ; yet, if he meet with none, he must acquiesce. Children have a right to affection and edu- cation from their parents ; and jiorents, on tl^eir part, to duly and reverence from their children ; yet, if these rights be on ei- ther side withholden, there is no compulsion to enforce them.

It may be at first view difficult to apprehend how a person should have a right to a thing, and yet have no right to use the means ne- cessary to obtain it. This difficulty, like most others in morality, is resolvable into the necessity of general rules. The reader recollects, that a person is said to have a " right" to a thing, when it is " consistent with the will of God"' that he should pos- sess it. So that the question is reduced to this ; how it comes to pass that it should be consistent with the will of God that a person should possess a thing, and yet not be consistent with the same will that he should use force to obtain it ? The answer is, that the permission of force in this case, because of the indeter- niinatcness either of the object, or of the circumstances of the right, would, in its consequence, lead to the permission of force in other cases, where there existed no right at all. The candi- date above described has, no doubt, a right to success ; but hi* right depends upon his qualifications, for instance, upon his com- parative virtue, learning, ^c. ; there must be somebody there- fore to compare them. The existence, degree, and respective importance of these qualifications, are all indeterminate : there must be somebody therefore to determine them. To allow ths

THE DIVISION OF RIGHTS. 7S

candidate to demand success by force, is to make liim the jiulge of his own qualifications. You cannot do this, but you must make all other candidates the same ; wiiich would open a door to de- mands without number, reason, or right. In like manner, a poor man has a right to relief from the rich ; but the mode, season., and quantum of that relief, who shall contribute to it, or how much, are not ascertained. Yet these points must be ascertnin- ed, before a claim to relief can be prosecuted by force. For, to allow the poor to ascertain them for themselves, would be to expose property to so many of these claims, that it would lose its value, or cease indeed to be property. The same observa- tion holds of all other cases of imperfect rights ; not to mention that in the instances of gratitude, affection, reverence, and the like, force is excluded by the very idea of the duty, which must be voluntary, or not at all.

Wherever the right is imperfect, the corresponding obligation must be so too. 1 am obliged to prefer the best candidate, to relieve the poor, be grateful to my benefactors, take care of my children, and reverence my pareiats ; but in all these cases, my obligation, like their right, is imperfect.

I call these obligations " imperfect," in conformity to the es- tablished language of writers upon the subject. The term, how- ever, seems ill chosen on this account, that it leads many to im- agine, that there is less guilt in the violation of an imperfect ob- ligation than of a perfect one. Which is a groundless notion. For an obligation being perfect or imperfect, determines only whether violence may or may not be employed to enforce it ; and determines nothing else. The degree of guilt incurred by violating the obligation is a different thing, and is determined by circumstances altogether independent of this distinction. A man who by a partial, prejudiced, or corrupt vote, disappoints a wor- thy candidate of a station. in life, upon which his hopes, possiblj, or livelihood depend, and thereby discourages merit and emula- tion in others, incurs, I am persuaded, a much greater crime than if he had filched a book out of a library, or picked a pock-

16 THE GENERAL RIGHTS

et of a handkercliief, though in the one case he violates only an imperfect right, in the other a perfect one.

As positive precepts are often irideternjinate in their extent, and as the indeterminateness of an obligation is that uhich makes it imperfect, it comes to pass, that positive precepts commonly produce an imperfect obligation.

Negative precepts or prohibitions, being generally precise^ constitute accordingly a perfect obligation.

The fifth commandment is positive, and the duty which re- eults from it is imperfect.

The sixth commandment is negative, and imposes a perfect obligation.

Religion and virtue find their principal exercise amongst the imperfect obligations, the laus of civil society taking pretty good care of the rest.

CHAPTER XI.

THE GENERAL RIGHTS OP^ MANKIND.

BY the General Rights of Mankind, I mean the rights which belong to the species collectively, the original stock, as I may say, which they have since distributed among themselves.

These are,

1. A right to the fruits or vegetable produce of the earth.

The insensible parts of the creation are incapable of injury ; and it is nugatory to inquire into the right, where the use can be attended with no injury. But it may be worth observing, for the sake of an inference which will appear below, that, as God has created us with a want and desire of food, and provided things suited by their nature to sustain and satisfy us, we may fairly presume, that he intended we should apply them to that purpose.

OF MANKIND. 77

IT. A right to the flesh of animals.

This is a very different claim from the former. Some excuse seems necessary for the pain and loss which we occasion to- brutes, by restraining them of their liberty, mutilating their bod- ies, and at last putting an end to their lives, which we sup- pose to be their all, for our pleasure or conveniency.

The reasons alleged in vindication of this practice, are the following : that the several species of brutes being created toi prey upon one another, affords a kind of analogy to prove that the human species were intended to feed upon them ; that, if let alone, they would overrun the earth, and exclude mankind from the occupation of it ; that they are requited for what they suffer at our hands, by our care and protection.

Upon which reasons I would observe, that the analogy con- tended for is extremely lame ; since brutes have no power to sup- port life by any other means, and since we have ; for the whole human species might subsist entirely ujion fruit, pulse, herbs, and roots, as many tribes of Hindoos actually do. The two other I'easons may be valid reasons, as far as they go ; for, no doubt, if man had been supported entirely by vegetable food, a great part of those animals which die to furnish his table, would never have lived : but they by no means justify our right over the lives of brutes to the extent in which we exercise it. What danger is there, for instance, of tish interfering with us, in the use of their element ? or what do we contribute to their support or preserva- tion ?

It seems to me, that it would bo difficult to defend this right by any arguments which the light and order of nature afford ; and that we are beholden for it to the permission recorded in Scripture, Gen. ix. 1, 2, 3: "And God blessed Noah and his " sons, and said unto them, Be fruitful and multiply, and re- " plenish the earth : and the fear of you, and the dread of you, " shall be upon every beast of the earth, and upon every fowl " of the air, and upon all that moveth upon the earth, and upon " all the fishes of the sea ; into your hand are they delivered :

78 Tilt: GENERAL RIGHTS

'* Every moving thing bliall be meat for you ; even as the " grceij •' hirb, have^ i given you all things." To Adam and his [los- terity had been granted, at the creation, "every green herb for *' meat," and nothing more. In the last clause of the passage pow produced, the old grant is recited, and extended to the flesh of animals ; " even as the green herb, have 1 given you all " things." But this was not till after the flood ; the inhabitants of the antediluvian world had therefore no such permission, that we know of. Whether they actually nfraiiicd iVom the flesh of animals, is another question. Abel, we read, was a keeper of sheep ; and for what purpose he kept them, but for food, is dif- ficult to say, (unless it were for sacrifices :) Might not, howev- er, some of the stricter sects among the antediluvians be scru- pulous as to this point? and might not ISoah and his family be i)f this description ? for it is not probable that God would pub- lish a permission, to authorize a practice which had never been disputed.

Wanton, and, what is worse, studied cruelty to brutes, is cer- tainly wrong, as coming within none of these reasons.

From reason, then, or revelation, or from both together, it ap- pears to be God Alniighly's intention, that the productions of the earth should be ajjplied to the suslenlalion of human life. Con- sequently all waste and misapplication of these productions is contrary to the divine intention and will ; and therefore wrong, for the same reason that any other crime is so. Such as what js related of William the Cunijueror^ the converting of twenty manoi's into a forest for hunting, or, what is not much better, suf- fering them to continue in that state ; or the letting of large tracts of land lie barren, because the owner cannot cultivate them, no^ will part with them to those who can ; or destroying, or suffer- ing to perish, great part of an article of human provision, in or- der to enhance the price of the reniaiiidcr ; (which is said to have been, till lately, the case with fish caught upon the En- glish coast;) or diminishing the breed of animale, by a wanton

OF MANKIND. 79*

•31" improvident consumption of the young, as of the spawiTof shell-fish, or the fry of salmon, by the use of unlawful nets, or at improper seasons: to this head may also be referred, what is the same evil in a smaller way, the expending of human food on superfluous dogs or horses ; and, lastly, the reducing of the quan- tity, in order to alter the quality, and to alter it generally for the worse ; as the distillation of spirits from bread corn, the boiling down of solid meat for sauces, essences, &c.

This seems to be the lesson which our Saviour, after his man- ner, inculcates, when he bids his disciples "gather up the frag- *' ments, that nothing be lost." And it opens indeed a new field of duty. Schemes oi' wealth or profit prompt the active part of mankind to cast about, how they may convert their property to the most advantage ; and their own advantage, and that of the public, commonly concur. But it has not as yet entered into the minds of mankind to reflect, that it is a duty to add what we can to the common stock of provision, by extracting out of our es- tates the most they will yield ; or that it is any sin to neglect this.

From the same intention of God Almighty, we also deduce another conclusion, namely, " that nothing ought to be made '* exclusive property which can be conveniently enjoyed in " common."

It is the general intention of God Almighty, that the produce of the earth be applied to the use of man. This appears from the constitution of nature, or, if you will, from his express decla- ration ; and this is all that appears hitherto. Under this gener- al donation, one man has the same right as another. You pluck an apple from a tree, or take a lamb out of a flock, for your im- mediate use and nourishment, and I do the same ; and we botb plead for Avhat we do, the general intention of the Supreme Pro- prietor. So far all is right : but you cannot claim the whole tree, or the whole flock, and exclude me from any share of them, and plead this general intention for what you do. The plea will not serve you ; you must show something farther. You must show, by probable arguments at least, that it is God's intentior*

3d THE CENEIIAL RIGHTS

that tliesc things should be parcelled out to individuals ; and that the established distribution, under which you claim, should be upheld. Show me Ihis, and I am satisfied. But until this be shown, the general intention, which has been made appear, and which is all that does appear, must prevail ; and, under that, my title is as good as yours. Now, there is no argument to in- duce such a presumption, but one, that the thing cannot be en- joyed at all, or enjoyed with the same, or with nearly the same advantage, while it continues in common, as when appropriated. This is true, where there is not enough for all, or where the ar- ticle in question requires care or labour in the production or preservation ; but where no such reason obtains, and the thing is in its nature capable of being enjoyed by as many as will, it seems an arbitrary usurpation upon the rights of mankind, to confine the use of it to any.

If a medicinal spring were discovered in a piece of ground which was private property, copious enough for every purpose it could be applied to, 1 would award a compensation to the owner of the field, and a liberal profit to the author of the dis- covery, especially if he had bestowed pains or expense upon the search ; but I question whether any human laws would be justified, or would justify the owner, in prohibiting mankind from the use of the water, or setting such a price upon it, as would almost amount to a prohibition.

If there be fisheries which are inexhaustible ; as for aught I know, the cod-fishery upon the Banks of Newfoundland, and the herring-fishery in the British seas are ; then all those conven- tions by which one or two nations claim to themselves, and guar- antee to each other, the exclusive enjoyment of these fisheries, are so many encroachments upon the general rights of mankind.

Upon the same principle may be determined a question, which makes a great figure in books of natural law, utrum mare sit li- herum? that is, as I understand it, whether the exclusive right of navigating particular seas, or a control over the navigation of these seas, can be claimed, consistently with the law of nature,

OF MANKIND. 81

by any nation ? — What is necessary for each nation's safety we allow ; as their own bays, creeks, and harbours, the sea contigu- ous to, that is, within cannon-shot, or three leagues of their coast : and upon the same principle of safety (if upon any principle) must be defended the claim of the Venetian State to the Adriatic, of Denmark to the Baltic, of Great Britain to the seas which in- vest the island. But, when Spain asserts a right to the Pacific Ocean, or Portugal to the Indian Seas, or when '>ny nation ex- tends its pretensions nuich beyond the limits of its own territo- ries, they erect a claim which interferes with the benevolent de- signs of Providence, and which no human authority can justify.

111. Another right, which may be called a general right, as it is incidental to every man who is in a situation to claim it, is the right of extreme necessity ; by which is meant, a right to use or destroy another's property, when it is necessary for our own preservation to do so ; as a right to lake, without or against the owner's leave, the first food, clothes, or shelter we meet with, when we are in danger of perishing through want of them ; a right to throw goods overboard, to save the ship ; or to ])ull down a house, in order to stop the progress of a fire ; and a few other instances of the same kind. Of which right the founda- f tion seems to be this, that when property , was first instituted, the institution was not intended to operate to the destruction of any ; therefore, when such consequences would follow, all regard to it ^

is superseded. Or rather, perhaps, these are the i^vi cases, where the particular consequence exceeds the general conse- 1

quencc ; where the mischief resulting from the violation of the ^

general rule, is overbalanced by the immediate advantage.

Restitution however is due, when in our po^ver ; because the laws of property are to be adhered to, so far as consists .with safe- ty ; and because restitution, which is one of those laws, suppo- ses the danger to be over. But what is to be restored ? Not the full value of the property destroyed, but what it was worth at nt the time of destroying it, which, considering the danger it was ^ in of perishing, might be s^iy little. L,

11

5>

\

^

BOOK nh

RELATIVE DUTIES.

PART I.

OF RELATIVE DUTIES WHICH ARE DETERMINATE.

CHAPTER I.

OF PROPERTY.

IF you should see a flock of pigeons in a field of corn ; and if (instead of each picking where and what it liked, taking just as much as it wanted, and no more) you should see ninety-nine of them gathering all they got into a heap ; reserving nothing for themselves but the chaff and the refuse ; keeping this heap for one, and that the weakest perhaps, and worst pigeon of the flock ; sitting round and looking on all the winter, whilst this one was devouring, throwing about, and wasting it ; and if a pigeon,, more hardy or hungry than the rest, touched a grain of the hoard, all the others instantly flying upon it, and tearing it to pie- ces : If you should see this, you would see nothing more than what is every day practised and established among men. Among men, you see the ninety and nine toiling and scraping together a heap of superfluities for one ; getting nothing for themselves all

OF PROPERTY. ta

ihe while, but a little of the coarsest of the provision which their labour produces, (and this one, too, oftentimes the feeblest and worst of the whole set, — a child, a woman, a mad-man, or a fool ;) looking quietly on, while they see the fruits of all their labour spent or spoiled ; and if one of them take or touch a particle of it, the others join against him, and bang him for the Iheft.

CHAPTER II.

THE USE OF THE INSTITUTION OF PROPERTY.

THERE must be some very important advantages to account for an institution, which, in one view of it, is so paradoxical and unnatural.

The principal of these advantages are the following : —

I. It increases the produce of the earth.

The earth, in climates like ours, produces little without culti- vation ; and none would be found willing to cultivate the ground, if others were to be admitted to an equal share of the produce.

The same is true of the care of flocks and herds of tame an- imals.

Crabs and acorns, red deer, rabbits, game, and fish, are ali we should have to subsist upon, if we trusted to the spontaneous productions of this country ; and it fares not much better with other countries. A nation of North-American savages, consist- ing of two or three hundred, v.'ill occupy, and be half-starved upon a tract of land, which in Europe, and with European man- agement, would be sufficient for the maintenance of as many thousands.

In some fertile soils, with great abundance of fish upon their coasts, and in regions where clothes are unnecessary, a consid- erable degree of population may subsist without property in

84 OF PROPERTY.

land, which is the case in the islands of Otaheite ; but in lc?s favoured situations, as in the country of New Zealand, though this sort of property obtain in a small degree, the inhabitants, for want of a more secure and rr^fular establishment of it, are driven oltentimes by the scarcity of provision to devour one another.

II. It preserves the produce of the earth to maturity.

We may judge what would be the effects of a community of right to the productions of the earth, from the trifling specimens which we see of it at present. A cherry-tree in a hedge-row, nuts in a wood, the grass of an unstinted pasture, are seldom of much advantage to any l>ody, because people do not wait for the proper season of reaping them. Corn, if any were sown, would never ripen ; lambs and calves would never grow up to sheep and cows, because the first person tliat met with them would reflect, that he had better take them as they are, than leave them for another.

III. It prevents contests.

War and waste, tumult and confusion, must be unavoidable and eternal, where there is not enough for all, and where there are no rules to adjust the division.

IV. It improves the conveniency of living.

Tills it does two ways. It enables mankind to divide them- selves into distinct professions; which is impossible, unless a man can exchange the productions of his own art for what he wants from others ; and exchange implies property. Much of the advantage of civilized over savage life, depends upon this. When a man is, from necessity, his own tailor, tent-maker, car- penter, cook, huntsman, and fisherman, it is not probable that he will be expert at any of his callings. Hence the rude habita- tions, furniture, clothing, and implements of savages, and the tedious length of time which all their operations require.

It likewise encourages those acts by which the accommoda- tions of human life are supplied, by appropriating to the artist the benefit of his discoveries and improvements ; without which appropriation, ingenuity will never be exerted witii effect.

THE HISTORY OF PROPERTY. 85

Upon these several accounts we may venture, with a few ex- ceptions, to pronounce, that even the poorest and the worst pro- vided, in countries where property, and the consequences of property prevail, are in a better situation with respect to food, raiment, houses, and what are called the necessaries of life, than any are in places where most things remain in common.

The balance, therefore, upon the whole, must preponderate in favour of property with a great excess.

Inequality of property, in the degree in which it exists in most countries of Europe, abstractedly considered, is an evil ; but it is an evil which flows from those rules concerning *he ac- quisition and disposal of property, by which men are incited to industry, and by which the object of their industry is rendered secure and valuable. If there be any great inequality uncon- nected with this origin, it ought to be corrected.

CHAPTER 111.

THE HISTORY OF PROPERTY.

THE first objects of property were the fruits a man plucked, and the wild animals he caught ; next to these, the tents or hous- es which he built, the tools he made use of to catch or prepare his food ; and afterwards weapons of war and offence. Many of the savage tribes in North-America have advanced no further than this yet ; for they are said to gather their harvest, and re- turn the produce of their market with foreigners into the common hoard or treasury of tlie tribe. Flocks and herds of tame ani- mals soon became property : Abel, the second from Adam, was a keeper of sheep ; sheep and oxen, camels and asses, composed the wealth of the Jewish patriarchs, as they do still of the modern Arabs. As the world was first peopled in the East, where there existed a great scarcity of water, wells probably were next made

86 THE HISTORY OF PllOrERTY.

property ; as we learn from tlie frequent and serious mention of them in the Old Testament, the content. ons and treaties about them,* and from its being recorded among the most memorable achievements of very eminent men, that they dug or discovered a Well. Land, which is now so important a part of property, which alone our laws call real proj)erty, and regard upon all oc- casions with such peculiar attention, was probably not made property in any country till long after the institution of many other species of property, that is, till the country became popu- lous, and tillage began lo be thought of. The first partition of an estate which we read of, wns that which took place between Abram and Lot, and was one of the simplest imaginable : " If " thou wilt take the left hand, then I will go to the right ; or if " thou depart to the right hand, then 1 will go to the left." There are no traces of property in land in Caisar's account of Britain ; little of it in the history of the Jewish patriarchs ; none of it found amongst the nations of North-America ; the Scythians are expressly said to have appropriated their cattle and houses, but to have left their land in common.

Property in moveables continued at first no longer than the occupation ; that is, so long as a man's family continued in pos- session of a cave, or his 'flocks depastured upon a neighboring hill, no one attempted, or thought he had a right, to disturb or drive them out ; but when the man quitted his cave, or changed his pasture, the first who found them unoccupied, entered upon them by the same title as his predecessor's, and made way in his turn for any one that happened to succeed him. All more permanent property in land was probably posterior to civil gov- ernment and to laws, and therefore settled by these, or according to the will of the reigning chief.

* Genesis, xxi. 25. xxvi. 18.

PROPERTY IN LAND. 87

CHAPTER IV.

IN WHAT THE RIGHT OF PROPERTY IS FOUNDED,

WE now speak of Property in Land ; and there is a difficulty' in explaining the origin of this property consistently with the law of nature ; for the land was once, no doubt, common, and the question is, how any particular part of it could justly be taken out of the common, and so appropriated to the first owner, as to give him a better right to it than others, and, what is more, a right to exclude all others from it.

Moralists have given many different accounts of this matter ; which diversity alone, perhaps, is a proof that none of them are satisfactory.

One tells us that mankind, when they suffered a particular person to occupy a piece of ground, by tacit consent relinquished their right to it ; and, as the piece of ground belonged to man- kind collectively, and mankind thus gave up their right to the first peaceable occupier, it thenceforward became his property, and no person afterwards had a right to molest him in it.

The objection to this account is, that consent can never be presumed from silence, where the person whose consent is re- quired knows nothing about the matter, which must have been the case with all mankind, except the neighbourhood of the place where the appropriation was made. And to suppose that the piece of ground previously belonged to the neighbourhood, and that they had a just power of conferring a right to it upon whonra they pleased, is to suppose the question resolved, and a parti- tion of land to have alread}' taken place.

Another says, that each man's limbs and labour are his own exclusively ; that, by occupying a piece of ground, a man in- separably mixes his labour with it ; by which means the peice of ground becomes thenceforward his own, as you cannot take it

S8 PROPERTY IN LAND.

from hiui, without depriving him at the same lime of something which is indisputably his.

This is Mr, Locke's solution ; and seems indeed a fair reason, where the value of the labour bears a considerabki proportion to the value of tliQ thing ; or where the thing derives its chief use and value from the labour. Thus, game and fish, though tjjey be common, whilst at large in the woods or water, instantly be- come the property of the person that catches them ; because an animal, when caught, is much more valuable than when at lib- erty ; and this increase of value, which is inseparable from, and makes a great part of the whole value, is strictly the property of the fowler, being the produce of his personal labour. P'or the same reason, wood or iron, manufactured into utensils, becomes the property of the manufacturer ; because the value of the workmanship far exceeds that of the materials. And upon a similar principle, a parcel of unappropriated ground, which a man should pare, burn, plough, harrow, and sow, for the produc- tion of corn, would justly enough be thereby made his own. But this will hardly hold, in the manner it has been applied, of taking a ceremonious possession of a tract of land, as navigators do of new-discovered islands, by erecting a standard, engraving an inscription, or publishing a proclamation to the birds and beasts ; or of turning your cattle into a piece of ground, setting up a landmark, digging a ditch, or planting a hedge round it. Nor will even the clearing, manuring, and ploughing of a field, give the first occupier a right to it in perpetuity, and after this cultivation and all effects of it are ceased.

Another, and in my opinion a better account of the first rights of ownei-ship, is the following : that as God has provided these things for the use of all, he has of consequence given each leave to take of them what he wants : by virtue therefore of this leave, a man may appropriate what he wants to his own use, without asking or waiting for the consent of others ; in like man- ner as, when an entertainment is provided for the tVeeholders of a county, each freeholder goes, and eats and drinks what he

PROPERTY IN LAND. 89

wants or chooses, without having or waiting for the consent of «the other guests.

But then this reason justifies property, as far as necessaries only, or, at the most, as far as a competent provision for our na- tural exigencies. For, in the entertainment we speak of, (allow- ing the comparison to hold in all points,) although every particu- lar freeholder may sit down and eat till he be satisfied, without any other leave than that of the master of the feast, or any other proof of this leave, than the general invitation, or the manifest design with which the entertainment is provided ; yet you would hardly permit any one Jo fill his pockets or his wallet, or to car- ry away with him a quantity of provision to be 'hoarded up, or wasted, or given to his dogs, or stewed down into sauces, or converted into articles of superfluous luxury ; especially if, by so doing, jie pinched the guests at the lower end of the table.

T.hese are the accounts that have been given of the matter by the best writers upon the subject, but, were these accounts less exeeplienable than they are, they would none of them, I fear, avail us in vindicating our present claims of property in land, unless it were more probable than it is^ that our estates were ac- tually acquired at first, in some of the ways which these accounts suppose ; and that a regular regard had been paid to justice, ia every successive transmission of them since ; for, if one link itt {he chain fail, every title posterior to it falls to the ground.

The real foundation of our right is the law of the land.

It is the intention of God, that the produce of the earth be ap- plied to the use of man ; this intention cannot be fulfilled with- out establishing property ; it is consistent therefore with his will, that property be established. The land cannot be divided into separate properly without leaving it to the law of the country to regulate that division : it is consistent therefore with the same will, that the law should regulate the division ; and, con- i-equcntly, " consistent with the will of God," or " right," thajt I should possess that share which these regulations assign me. J2

90 PROPERTY IN LAND.

By whatever circuitious train of reasoning you attempt to de- rive this right, it must terminate at last in the will of God ; the straightest, therefore, and shortest way of coming at this will, is the best.

Hence it appears, that my right to an estate does not at all depend upon the manner or justice of the original acquisition ; nor upon the justice of each subsequent change of possession. It is not, for instance, the less, nor ought it to be impeached, be- cause the estate was taken possession of at first by a family of abo- riginal Britons, wlio happened to be stronger than their neigh- bours ; nor because the British possessor was turned out by a Roman, and the Roman by a Saxon invader ; nor because it was seized, without colour of right or reason, by a follower of the Norman adventurer; from whom, after many interrup- tions of fraud and violence, it has at length devolved to me.

Nor does the owner's right depend upon the expediency of the law which gives it to him. On one side of a book, an es- tate descends to the eldest son ; on the other side, to all the children alike. The right of the claimants under both laws of inheritance is equal ; though the expediency of such opposite rules must necessarily be different.

The principles we have laid down upon this subject, appa- rently tend to a conclusion of which a bad use is apt to be made. As the right of property depends upon the law of the land, it seems to follow, that a man has a right to keep and take every thing which the law will allow him to keep and take ; which in ma- ny cases will authorize the most manifest and llagitious chicanery. If a creditor upon a simple contract neglect to demand his debt for six years, the debtor may refuse to pay it : would it be right therefore to do so, where he is conscious of the justice of the debt? if a person who is under twenty-one years of age con- tract a bargain, (other than for necessaries,) he may avoid it by pleading his minority ; but would this be a fair plea, where the bargain was originally just ? — The distinction to be taken in such cases is this : With the Uw. we acknowledi;e, resides the

PROPERTY IN LAND. 91

disposal of propertj ; so long, therefore, as we keep within the design and intention of a law, that law will justify us, as well in foro conscientiiE, as inforo humano, whatever be the -equity or ex- pediency of the law itself. But when we convert to one purpose a rule or expression of law, which is intended for another pur- pose, tb«n we plead in our justification, not the intention of the law, but the words ; that is, we plead a dead letter, which can signify nothing ; for words without meaning or intention, have no force or effect in justice ; much less, words taken con- trary to the meaning and intention of the speaker or writer. To apply this distinction to the examples just now proposed : — In Order to protect men against antiquated demands, from which it is not probable they should have preserved the evidence of their discharge, the law prescribes a limited time to certain species of private securities, beyond which it will not enforce them, or lend its assistance to the recovery of the debt. If a man be ignorant or dubious of the justice of the demand made upon him, he may conscientiously plead this limitation : because he applies the rule of law to the purpose for wliich it was intended. But when he refuses to pay a debt, of the reality of which he is conscious, he cannot, as before, plead the intention of the statute, and the su- preme authority of law, unless he could show that the law iw tended to interpose its supreme authority, to acquit men of debts, of the existence and justice of which they were themselves sen- sible. Again, to preserve youth from the practices and imposi- tions to which Ibeir inexperience exposes them, the Jaw compels the payment of no debts incurred within a certain age, nor the performance of any engagements, except for such necessaries as are suited to their condition and fortunes. If a young person therefore perceive that he has been practised or imposed upon, he may honestly avail himself of the privilege of his non-age, to defeat the circumvention. But, if he shelter himself under this privilege, to avoid a fair obligation, or an equitable contract, he extends the privilege to a case, iji which it is not allowed by in-

9J2 I'ROMISES.

tention of law, and in which consequently it does not, in natur^^I justice, exist.

As property is the principal subject of justice, or of " the dc- *' terminate relative duties," we have put down what we had to say upon it in the first place : we now proceed to state these du- ties in the best order we can.

CHAPTER V.

PROMISES.

I. WHENCE the obligation to perform promises arises.

II. In what sense promises arc to be interpreted.

III. In what cases promises are not binding.

I. From whence the obligation to perform promises arises.

They who argue from innate moral principles, suppose a sense of the obligation of promises to be one of them ; but without as- suming this, or any thing else, without proof, the obligation to perform promises may be deduced from the necessity of such a conduct, to the well-being, or the existence, indeed, of human society.

Men act from expectation. Expectation is in most cases de- termined by the assurances and engagements which we receive from others. If no de]iendancc could be placed u[)on these as- surances, it would be impossible to know what judgment to form of many future events, or how to regulate our conduct with re- spect to them. Confidence therefore in promises, is essential to the intercourse of human life ; because, without it, the great- est p^rt of our conduct would proceed upon chance. But there could be no confidence in promises, if men were not obliged to

PROMISES. 93

perform them ; the obligation therefore to perform promises, is essential, to the same end, and in the same degree.

Some may imagine, that if this obligation were suspended, a general caution and mutual distrust would ensue, which might do as well : but this is imagined, without considering how, eve- ry hour of our lives, we trust to, and depend upon others ; and how impossible it is to stir a step, or what is worse, to sit still a moment, without such trust and dependance. I am now writing at my ease, not doubting, (or rather never distrusting, and there- fore never thinking about it,) but that the butcher will send in the joint of meat which I ordered ; that his servant will bring it ; that my cook will dress it ; that my footman will serve it up ; and that I shall find it upon table at one o'clock. Yet have I nothing for all this but the promise of the butcher, and the im- plied promise of his servant and mine. And the same holds of the most important as well as the most familiar occurrences of social life. In the one, the intervention of promises is formal, and is seen and acknowledged ; our instance, therefore, is in- tended to show it in the other, where it is not so distinctly ob- served.

II. In wliat sense promises are to he interpreted.

Where the terms of a promise admit of moi'e senses than one, the promise is to be pei-formed " in that sense in which the " promiser apprehended at the time that the promisee receiv- "ed it."

It is not the sense in which the promiser actually intended it that always governs the interpretation ot an equivocal promise ; for, at that rate, you might excite expectations, which you never meant, nor would be obliged to satisfy. Much less is it the sense in which the promisee actually received the'promise ; for, according to that rule, you might be drawn into engagements which you never designed to undertake. It must therefore be the sense (for there is no other remaining) in which the promis- er belived that the promisee accepted his promise.

94 PROMISES.

, This will not differ from the actual intention of the promiscr, where the promise is given without collusion or reserve ; but we put the rule in the above form, to exclude evasion in cases in which the popular meaning of a phrase, and the strict grammati- cal signification of the words, differ ; or, in general, wherever the promiser attempts to make his escape through some ambigu- ity in the expressions which he used.

Temures promised the garrison of Sebastia, that, if they would surrender, no blood should be shed. The garrison surrendered, and Temures buried them all alive. Now Temures fulfilled the promise in one sense, and in the sense too in which he intended it at the time, but not in the j^ense in which the garrison of Se- bastia actually received it, nor in the sense in which Temures himself knew that the garrison received it ; which last sense, ac- cording to our rule, was the sense he was in conscience bound to have performed it in.

From the account we have given of the obligation of promises, it is evident, that this obligation depends upon the expectations which we knowingly and voluntarily excite. Consequently, any action or conduct towards another, which we are sensible excites expectations in that other, is as much a promise, and creates as strict an obligation as the most express assurances. Taking, for instance, a relation's child, and educating him for a liberal profession, or in a manner suitable only for the heir of a large fortune, as much obliges us to place him in that profession, or to JeavG him such a fortune, as if we had given him a promise to do so under our hands and seals. In like manner, a great man, tvho encourages an indigent retainer, or a minister of state, who distinguishes and caresses at his levee one who is in a situation to be obliged oy his patronage, engages by such behaviour, to provide for him. This is the foundation of tacit promises.

You may either simply declare your present intention, or you may accompany your declaration with an engagement to abide by it, which constitutes a complete promise. In the first case, ♦he duty is satisfied, if you wore sincere ; that is, if yon enter-

PROMISES. 95

lained at the time the intention you expressed, however soon, or lor whatever reason, you afterwards change it. In the latter case, you have parted with the liberty of changing. All this ig plain : but it must he observed, that most of those forms of speech, which, strictly taken, amount to no more than declara- tions of present intention, do yet, in the usual way of understand- ing them, excite the expectation, and therefore carry with them the force of absolute promises. Such as " I intend you this " place." — ■" I design to leave you this estate." — " I purpose " giving you my vote." — " I mean to gerve you." In which, although the "• intention," the " design," the " purpose," the " meaning," be expressed in words of the present time, yet you cannot afterwards recede from them, without a breach of good faith. If you choose therefore to make known your present in- tention, and yet to reserve to yourself the liberty of changing it, you must guard your expVessions by an additional clause, as " I *' intend at present,^'' — " if I do not alter,'''' — or the like. And aftei'all, as there can be no i-eason for communicating your in- tention, but to excite some degree of expectation or other, a wanton change of an intention which is once disclosed, always disappoints somebody, and is always, for that reason, wrong.

There is in some men an infirmity with regard to promises, which often betrays them into great distress. From the confu-. sion, or hesitation, or obscurity, with which they express them- selves, especially when overawed, or taken by surprise, they sometimes encourage expectations, and bring upon themselves demands, which, possibly, they never dreamed of. This is a want, not so much of integrity, as of presence of mind.

III. In tvhat cases promises are not binding.

1. Promises are not binding, where the performance is impos- sible.

But observe, that the promisor is guilty of a fraud, if he be privately aware of the impossibility at the time of making the promise. For, when any one promises a thing, he asserts his belief, at least, of the possibility of performing it : as po one

96 PROMISES.

can accept or understand a promise under any other supposition. Instances of this sort are the following : The minister promises a place, which he knows to be engaged, or not at his disposal : — A father, in settling marriage-articles, promises to leave his daughter an estate which he knows to be entailed upon the heir- male of his family : — A merchant proniises with his daughter a ship, or share of a ship, which he is privately advised is lost at sea : — An incumbent promises to resign a living, being well assur- ed that his resignation will not be accepted by the bishop. The promiser, as in these cases, with knowledge of the impossibility, is justly answerable in an equivalent ; but otherwise not.

When the promiser himself occasions the impossibility, it is neither more nor less than a direct breach of the promise ; as when a soldier maims, or a servant disables himself, to get rid of their engagements.

2. Promises are not binding, where the performance is unlawful.

There are two cases of this : one, where the unlawfulness is known to the parties, at the time of making the promise ; as where an assassin promises to despatch your rival or yonr ene- my ; a servant to betray his master; a pimp to procure a mis- tress ; or a friend to give his assistance in a scheme of seduction. The parties in these cases are not obliged to perform what the promise requires, because they were under a prior obligation to the contrary. From which prior obligation what is there to dis- charge them ? Their promise — their own act and deed. But an obligation, from which a man can discharge himself by his own act and deed, is no obligation at all. The guilt therefore of such promises is in the making, not in the breaking them ; and if, in the interval betwixt the promise and the performance, a man so far recover his reflection, as to repent of his engage- ments, he ought certainly to break through them.

The other case is, where the unlawfulness did not exist, or was not known, at the time of making the promise : as where a merchant promises his correspondent abroad, to send him a ship-load of corn at a time appointed, and before the time av-

PROMISES. 97

yives, an embargo is laid upon the exportation of corn : — A wo- man gives a promise of marriage ; before the marriage, she dis- covers that her intended husband is too near a kin to her, or has a wife yet living, in all such cases, where the contrary does not appear, it must be presumed that the parties supposed what they promised to be lawful, and that the. promise proceeded en- tirely upon this supposition. The lawfulness therefore becomes a condition of the promise ; and where the condition fails, the obligation ceases. Of the same nature, was Herod's promise to his daughter-in-law, " (hat he would give her whatever she ask- " ed, even to the half of his kingdom." The promise was not unlawful in the terms in which Herod delivered it ; and when it became so by the daughter's choice, by her demanding " John " the Baptist's head," Herod was discharged from the obliga- tion of it, for the reason now laid down, as well as for that given in the last paragraph.

" This rule, " that promises are void, where the perfcrmance " is unlawful," extends also to imperfect obligations ; for, the reason of the rule holds of all obligations. Thus, if you promise a man a place or your vote, and he afterwards render himself un- fit fo receive either, you are absolved from the obligation of your promise ; or if a better candidate appear, and it be a case in which you ^re bound by oath, or otherwise, to govern yourself by the qualification, the ])romise must be broken through.

And here I would recommend to young persons especially, a caution, from the neglect of which many involve themselves in embarrassment and disgrace ; and that is, " never to give a " promise, which may interfere in the event with their duty ;" for, if it do so interfere, the duty must be discharged, though at the expense of their promise, and not unusually of their good name. »

The specrfic performance of promises is reckoned a perfect ob- ligation. And many casuists have laid it down in opposition to what has been here asserted, that where a perfect and an imper- fect obligation clash, the perfect obligation is to be preferred* Foj 13

9B PROMISES.

which opinion, however, there seems to be no reason, but what arises from the terms " perfect" and " imperfect," the impro- priety of which has been remarked above. The truth is, of two contradictory obligations, that ougiit to prevail which is prior in point of time.

It is the performance being unlawful, and not any unlawful- ness in the subject or motive of the promise, which destroys its validity : therefore a bribe, after the vote is given ; the wages of prostitution ; the reward of any crime, after the crime is com- mitted, ought, if promised, to be paid. For the sin and mis- chief, by this supposition, are over ; and will be neither more nor less for the performance of the promise.

In like manner, a promise does not lose its obligation merely because it proceeded from an wilarfful motive. A certain per- son, in the lifetime of his wife, who was then sick, paid his ad- dresses, and promised marriage to another woman ; — the wife- died ; and the woman demanded performance of the promise. The man, who, it seems, had changed his mind, either felt or pretended doubts concerning the obligation of such a promise, and referred his case to Bishop Sanderson, the most eminent, in this kind of knowledge, of his time. Bishop Sanderson, after writing a dissertation upon the question, adjudged the promise to be void. In which, however, upon our principles, he was wrong : for, however criminal the affection might be, which in- duced the promise, the performance, when it was demanded, was lawful ; which is the only lawfulness required.

A promise cannot be deemed unlawful, where it produces, when performed, no effect beyond what would have taken place bad the promise never been made. And this is the single case» m which the obligation of a promise will justify a conduct, which, unless it had been prwjiised, would be unjust. A captive may lawfully recover his liberty, by a promise of neutrality ; for his conqueror takes nothing by the promise, which be might not have secured bv his death or confinement ; and neutrality would be innocent in him, although criminal in another. It is manifest.

PROMISES. ^9

kowever, that promises which come into the place of coercion, can extend no further than to passive compliances ; for coercion, itself could compel no more. Upon the same principle, promis- es of secrecy ought not to be violated, although the public would derive advantage from the discovery. Such promises contain no unlawfulness in them, to destroy their obligation ; for, as the information would not have been imparted upon any other con- dition, the public lose nothing by the promise, which they would have gained without it.

3. Promises are not binding, where thej contradict a former vromise.

Because the performance is then unlawful ; which resolves this case into the last,

4. Promises are not binding before acceptance ; that is, before ^iiotice given to the promisee ; for, where the promise is benefi- i«;ial, if notice be given, acceptance may be presumed Before the promise be communicated to the promisee, it is the same on- ly as a resoluticn in the mind of the promiser, which may be ■altered at pleasure. For no expectation has been excited, there- fore none can be dis&ppointed„

But suppose I declare my intention to a third person, who, without any authority from me, conveys my declaration to the pron?i>x'e ; is that such a notice as will be binding upon me ? It certainly is not ; for I have not done that which constitutes the ■essence of a promise, — I have not voluntarily excited expecta- tion.

5. Promises are not binding, which are released by the prom- isee.

This is evident : but it may be sometimes doubted who is the promisee. If I give a promise to A, of a place or vote for B ; as to a fadier for his son ; to an uncle for his nephew ; to a friend of mine, for a relation or friend of his ; then A is the promisee^ whose consent I must obtain, to release me from the engagement.

If I promise a place or vote to B by A, that is, if A be a mes- r,enger to convey the promises ^-^ 'f 1 should say, " You may teM

100 PROMISEi?.

•' B that he shall have this place, or may depend upon my vote ;" or if A be employed to introduce B's request, and I answer in any terms which amount to a compliance with it, then B is tlie promisee.

Promises to one person, for the benefit of another, are not re- leased by the death of the promisee : for, his death neither makes tlie performance impracticable, nor implies any consent to release the promiser from it.

6. Erroneous promises are not binding in certain cases ; as,

1. Where the error proceeds from the mistake or misrepre- sentation of the promisee.

Because a promise evidently supposes the truth of the account, which the promisee relates in order to ob^in it. A beggar so- licits your charity by a story of the most pitiable distress ; you promise to relieve him, if he will call again : — In the interval you discover his story to be made up of lies ; — this discovery, no doubt, releases you from your promise. One who wants your service, describes the business or office for which he would engage you ; — you promise to undertake it : when you come to enter upon it, you find the profits less, the labour more, or some material circumstance different from the account he gave you : — • In such case you are not bound by your promise.

2. When the promise is uiideistood by the promisee to pro- ceed upon a certain supposition, or when the promiser thought he so understood it, and that supposition turns out to be false ; then the promise is not binding.

This intricate rule will be best explained by an example. A father receives an acount from abroad, of the death of his only son ; — soon after which, he promises his fortune to his nephew. — The account turns out to be false. The father, we say, is re- leased from his promise ; not merely because he never would have made it, had he, known tlie truth of tlie case, — for that alone will not do ; — -but because the nephew also himself under- stood the promise to proceed upon the supposition of his cousin's death ; or at least, his uncle thought he so understood it ; and

PROMISES. 101

could not think otherwise. The promise proceeded upon this supposition in the promiser's own apprehension, and as he be- lieved, in the apprehension of both parties : and this belief of his, is the precise circumstance which sets him free. The found- ation of the rule is plainly this : a man is bound only to satisfy the expectation which he intended to excite ; whatever condi- tion therefore he intended to subject that expectation to, becomes an essential condition of the promise.

Errors, which come not within this description, do not annul the obligation of a promise. I promise a candidate my vote ; presently another candidate appears, for whom I certainly would have reserved it, had I been acquainted with his design. Here therefore, as before, my promise proceeded from an error ; and I never should have given such a promise, had I been aware of the truth of the case, as it has turned out. — But the promisee did not know this ; — he did not receive the promise subject to any such condition, or as proceeding from any such supposition ; — nor did I at the time imagine he so received it. This error, therefore, of mine, must fall upon my own head, and the promise be observed notwithstanding. A father promises a certain tor- tune with his daughter, supposing himself to be worth so much : — his circumstances turn out, upon examination, worse than he was aware of. Here again the promise was erroneous, but, for the reason assigned in the last case, will nevertheless be obligatory. The case of erroneous promises is attended with some difficul- ty : for to allow every mistake, or change of circumstances, to dissolve the obligation of a promise, would be to allow a lati- tude, which might evacuate the force of almost all promises ; and, on the other hand, to gird the obligation so tight as to make no allowances for manifest and fundamental errors, would, in many instances, be productive of great hardship and absurdityo

it has long been controverted amongst moralists, whether promises be binding, which are extorted by violence or fear. The obligation of all promises results, we have seen, from the

102 PROMISES.

necessity or tlie use of that confidence Avhich mankind repose in thetn. The question, therefore, whether these promises are binding, will depend upon this, whether mankind, upon the whole, are benefited by the confidence placed in such promises ? A highway-man attacks you, — and being disappointed of his booty, threatens or prepares to murder you ; — you promise, with many solemn asseverations, that if he will spare your life, he' -shall find a purse of money left for him, at a place appoint- ed ; — upon the faith of this promise, he forbears from further violence. Now, your life was saved by the confidence reposed in a promise extorted by fear ; and the lives of many others may be saved by the same. This is a good consequence. On the other hand, a confidence in promises like these would great- ly facilitate the perpetration of robberies : they might be made the instruments of almost unlimited extortion. This is a bad consequence ; and in the question between the importance of these opposite consequences, resides the doubt concerning the obligation of such promises.

There are other cases which are plainer ; as where a magis- trate confines a disturber of the public peace in gaol, till he promise to behave better ; or a prisoner of war promise.^, if set at liberty, to return within a certain time. These promises, say moralists, are binding, because the violence or duress is just ; but the truth is, because there is the same use of confidence in ihese promises, as of confidence in the promises of a person at perfect liberty.

Vows are promises to God. The obligation cannot be made jout upon the same principle as that of other jjromises. The vi- olation of them, nevertheless, implies a want of reverence to the Supreme Being, which is enough to make it sinful.

There appears no command or encouragement in the Chris- lian Scriptures to make vows, much less any authority to break through them when they are made. The few instances* of vows which we read of in the New Testament, were religiously ob- served.

» Acts, xvijj. 18. xxi. 23.

CONTRACTS. lOS

The^-ules we have laid down concerning promises, are appli- cable to vows. Thus Jephthah's vow, taken in the sense in which that transaction is commonly understood, was not binding ) because the performance, in that contingency, became unlawful.

CHAPTER VI.

CONTRACTS.

A CONTRACT is a mutual promise. The obligation there- fore of contracts, the sense in which they are to be interpreted, and the cases where they are not binding, will be the same as of promises.

From the principle established in the last chapter, " that the •'■obligation of promises is to be measured by the expectation " which the promisei any how voluntarily and knowingly ex- " cites," results a rule, which governs the construction of all contracts, and is capable, from the simplicity of it, of being ap-v plied with great ease and certainty ; viz. That,

Whatever is expected by one side, and known to be so expected ly the other, is to be deemed a part or condition of the contract.

The several kinds of contracts, and the order in which we prO"- pose to consider them, may be exhibited at one view, thus :

rSale. Hazard.

Contracts of-

Lending of | m^^J"'""'"^'" Property.

Service. Commissions. Partnership. Oflices.

Labc

104 CONTRACTS OF SALE.

GHAPTEK Vri.

CONTRACTS OF SALE.

THE rule of justice, vvLicli wants most to be inculcated in llie making of bargains, is, that the seller is bound in conscience to disclose the faults of what he olTers to sale. Amongst other methods of proving this, one may be the following :

I suppose it will be allowed, that to advance a direct falsehood in recommendation of our wares, by ascribing to them some qual- ity which we know that they have not, is dishonest. Now com- pare with this the designed concealment of some fault which wc know that they have. The motives and the effects of actions are the only points of comparison in which their moral quality can differ ; but the motive in these two cases is the same, vrz. to procure a higher price than we expect otherwise to obtain : The effect, that is, the prejudice to the buyer, is also the same ; for he finds himself equally out of pocket by his bargain, wheth- er the commodity, when he gets home ^vilh it, turn out worse thsn he had supposed, by the want of some quality which he ex- pected, or the discovery of some fault which he did not expect. If therefore actions be the same, as to all moral purposes, which proceed from the same motives, and produce the same effect?,^ it is making a distinction without a difference, to esteem it a cheat to magnify beyond the truth the virtues of what we have to sell, but none to conceal its faults.

It adds to the value of this kind of honesty, that the faults of

many things are of a nature not to be known by any but by the

persons who have used them ; so that the buyer has no security

from imposition but in the ingenuousiieiS and integrity of the

seller.

There is one exception, however, to this rule, namely, where

the silence of the seller implies some fault in the thing to be

CONTKACTS OF SALE. 105

sold, and where the buyer has a compensation in the price for the risk which hfe runs ; as where a horse, in a London reposito- ry, is sold by public auction without warranty, the want of war- ranty is notice of some unsoundness, and produces a proportion- able abatement in the price.

To this of concealing the faults of what we want to put oflf, may be referred the practice of passing bad money. This practice we sometimes hear defended by a vulgar excuse, that we have taken the money for good, and must therefore get rid of it. Which excuse is much the same as if one, who had been robbed upon the highway, should imagine he had a right to reimburse himself out of the pocket of the first traveller he met ; the jus- tice of which reasoning the traveller possibly may not compre- hend.

Where there exists no monopoly or combination, the market- price is always a fair price, because it will always be propor- tionable to the use and scarcity of the article. Hence, there need be no scruple about demanding or taking the market-price ; and all those expressions, " provisions are extravagantly dear," ^' corn bears an unreasonable price," and the like, import no unfairness or unreasonableness in the seller.

If your tailor or your draper charge, or even ask of you, more for a suit of clothes than the market-price, you complain that you are imposed upon ; you pronounce the tradesman who makes such a charge dishonest ; although as the man's goods were his own, and he had a right to prescribe the terms upon which he vvould consent to part with them, it may be questioned what dis- honesty there can be in the case, and wherein the imposition consists. Whoever opens a shop, or in any manner exposes goods to public sale, virtually engages to deal with his custom- ers at a market-price ; because it is upon the faith and idea of such an engagement that any one comes withii^his shop-doors, or oflers to treat with him. This is expected by the buyer ; is known to be so expected by the seller ; which is enough, ac- cording to the rule delivered above, to make it a part of the 11

106 CONTRACTS OF SALi:.

contract between tlicni, though not a syllable be said about It. The breach of this implied contract constitutes the fraud inquir- ed after.

Hence, if you disclaim any such engagement, you may set what value you please upon your property. If, upon being asked to sell a house, you answer that the house suits your fan- cy or ronvenicncy, and that you will not turn yourself out of it under such a price ; the price fixed may be double of what the house cost, or would (etch at a public sale, without any imputa- tion of injustice or extortion upon you.

If the thing sold be damaged, or perish between the sale and the delivery, ought the buyer to bear the loss, or the seller ? This will depend upon the particular construction of the con^ tract. If the seller, either expressly, or by implication, or by custom, engage to deliver the goods ; as, if I buy a set of china, and the china-man ask. me to what place he shall bring or send them, and they are broken in the conveyance, the seller must abide by the loss. If the thing sold remain with ihe seller, at the instance or for the conveniency of the buyer, then the buyer undertakes the risk ; as, if I buy a horse, and mention that I will send for it on such a day, (which is in effect desiring that it may continue with the seller till I do send for it,) then whatev- er misfortune befalls the horse in the mean time, must be at my cost.

And here, once for all, I would observe, that innumerable questions of this sort are determined solely by custom; not that custom possesses any proper auihority to alter or ascertain the nature of right and wrong, but because the contracting parties are presumed to include in their stipulation all the conditions which custom has annexed to contracts of the same sort ; and •when the usage is notorious, and no exception made to it, this presumption is generally agreeable to the fact.*

* It happens here, as in aiaj- cases, that what the parties ought to do, and what a jiidge^or arbitrator would award to be done, may be very diffrtreut. What the parties ought to do by virtue of their contract, do-

CONTRACTS OF HAZARD. 107

If I order a pipe of port from a wine-merchant abroad : at what period the property passes from the merchant to me ; wheth- •er upon delivery of the wine at the merchant's warehouse ; upon its being put on ship-board at Oporto ; upon the arrival of the ship in England ; at its destined port ; or not till the wine be committed to my servants, or deposited in my cellar ; arc all questions which admit of no decision, but what custom points out. Whence injustice, as well as law, what is called the custom "rf merchants, regulates the construction of mercantile concerns.

CHAPTER VIIL

CONTRACTS OF HAZARD.

BY contracts of hazard, I mean gaming and insurance.

What some say of this kind of contracts, '•' that one side '-" ought not to have any advantage over the other," is neither practicable nor true. It is not practicable ; for that perfect ■equality of skill and judgment which this rule requires, is seldons to be met with. I might not have it in my power to play with fairness a game at cards, billiards, or tennis, lay a wager at -a liorse-race, or underwrite a policy of insurance, once in a twelve- month, if I mjjst wait till I meet with a person, whose art, skill, and judgment in these matters, is neither greater nor less than my own. Nor is this equality requisite to the justice of the con- tract. One party may give to the other the whole of the stake^ if he' please, and the other party may justly accept it, if it be given him ; much more therefore may one give to the other a

pends upon their consciousness at the time of making it : whereas a third person finds it necessary to found his judgment upon presumptions, ■which presumptions may be false, although the mest probable that he couM proceed by.

108 CONTRACTS OF HAZARD.

part of the stake, or, what is exactly the same thing, an advan- tage in the chance of winning the whole.

The proper restriction is, that neither side have an advantage bv means of which the other is not aware ; for this is an advan- tage taken without being given. Although the event be still an uncertainty, your advantage in the chance has a certain value ; and so much of the stake as that value amounts to, is taken from your adversary without his knowledge, and therefore without his consent. If 1 sit down to a game at whist, and have an advan- tage over the adversary, by means of a better memory, closer attention, or a superior knowledge of the rules and chance? of the game, the advantage is fair, because it is obtained by means of which the adversary is aware ; for he is aware, when he sits down with me, that I shall exert the skill that I possess to the utmost. But if I gain an advantage, by packing the cards, glancing my eye into the adversaries' hands, or by concerted signals with my partner, it is a dishonest advantage, because it depends upon means which the adversary never suspects that I make use of.

The same distinction holds of all contracts into which chance enters. If I lay a wager at a horse-race, founded upon the con- jecture I form from the appearance, and character, and breed of the horse, I am justly entitled to any advantage which my judg- ment gives me ; but, if I carry on a clandestine correspondence with the jockies, and find out from them tliat a trial has been ac- tually made, or that it is settled beforehand wliich horse shall win the race, all such information is so much fraud, because de- rived from sources which the other did not suspect when he pro- posed or accepted the wager.

In speculations in trade, or in the stocks, if I exercise ray judgment upon the general aspect and posture of public affairs, and deal with a person who conducts himself by the same sort of judgment, the contract has all the equality in it which is ne- cessary ; but, if I have access to secrets of state at home, or private advice of some decisive measure or event abroad, I can;-

LENDING OF INCONSUMABLE PROPERTY. 109

not avail myself of these advantages with justice, because they are excluded by the contract, which proceeded upon the suppo- sition that I had no such advantage.

In insurances, where the underwriter computes his risk entire- ly from the account given by the person insured, it is absolutely necessary to the justice and validity of the contract, that this account be exact and complete.

CHAPTER IX.

CONTRACTS OF LENDING OF INCONSUMABLE PROPERTY.

WHEN the identical loan is to be returned, as a book, a horse, a 'harpsichord, it is called inconsumable, in opposition to corn, wine, money, ari.d those things which perish, or are parted with in the use, and can therefore only be returned in kind.

The questions under this head are few and simple. The first is, h' the thing lent be lost or damaged, who ought to bear the loss or damage ? If it be damaged by the use, or by accident in the use, for which it was lent, the lender must bear it ; as, if I hire a job-coach, the wear, tear, and soiling of the coach must belong to the lender ; or a horse^ to go a particular journey, and, in going the proposed"journey, the horse die, or be lamed, the loss must be the lender's : on the contrar}^ if the damage be occasioned by the fault of the borrower, or by accident in son>e use for which it was not lent, then the borrower must make it good , as, if the coach be overturned or broken to pieces by the carelessness of your coachman ; or the horse be hired to take a morning's ride upon, and you go a-hunting vfith him, or leap him over hedges, or put him into your cart or carriage, and he be strained, or staked, or galled, or accidentally hurt, or drop down dead, whilst you arc tl)u= tiding him : you must make sat- isfaction to the owner.

110 LENDING OF INCO.NSUMABLE PllOPERTY.

The two cases are distinguished by this circumstance, that in one case the owner foresees the damage or risk, and tlierelore consents to undertake it ; in the other case he does not.

It is possible that an estate or a house may, during the term of a lease, be so increased or diminished in its value, as to l^e- come worth much more, or much less, than the rent agreed to be paid for it. In some of which cases it may bu doubted, to whom, of natural right, the advantage or disadvantage belongs. The rule of justice seems to be this : if the alteration might be ex- pected by the parlies, the hirer must take the consequence ; if it could not, the owner. An orchard, or a vineyard, or a mine, or a fishery, or a decoy, may this year yield nothing, or next to nothing, yet the tenant shall pay his rent ; and if the next year produce tenfold the wsual profit, no more shall be demanded • because the produce is in its nature precarious, and this varia- tion might be expected. If an estate in the fens of Lincolnshire or the isle of Ely, be overflowed with water so as to be inca- pable of occupation, the tenant, notwithstanding, is bound by the lease ; because he entered into it with a knowledge and fore- sight of this danger. On the other hand, if, by the irruption of Jhe sea into a country where it was i^ver known to have come before, by the change of the course of a river, the fall of a rock- the breaking out of a volcano, the bursting of a moss, the incursions of an enemy, or by a mortal contagion amongst the cattle ; if, by means like these, the estate change, or lose its value, the loss shall fall upon the owner ; that is, the tenant shall either be dis- charged from his agreement, or be entitled to an abatement of rent. A hotise in London, by the building of a bridge, the opening of a new road or street; may become of ten times its former value ; and, by contrary causes, may be as much reduc- ed in value : here, also, as before, the owner, not the hirer, shall be affected by the alteration. The reason upon which our de- termination proceeds is this, that changes such as these, being neither forseen nor provided for, by the contracting parties, form no part or condition of the contract ; and therefore ought to have

LENDING OF MONEY. 1 1 1

the same effect as if no contract at all had been made, (for none was made with respect to tJvem,) that is, ou»;ht to fall upon the

owner.

CHAPTER X.

CONTRACTS CONCERNING THE LENDING OF MONEY.

THERE exists no reason in the law of nature, why a man should not be paid for the lending of his money, as well as of any other property into which the money might be converted.

The scruples that have been eniertained upon this head, and upon the foundation of which the receiving of interest or usury (for they formerly meant the same thing) was once prohibited in almost all Christian countries,* arose from a passage in the law of Moses, Deuteronomy xxiii. 19, 20 : " Thou shalt not lend " upon usury to thy brother ; usury of money, usury of victuals, " usury of any thing that is lent upon usury : unto a stranger " thou may est lend upon usury ; but unto thy brother thou shali " not lend upon usury."

This prohibition is now generally understood to have been in- tended for the Jews alone, as part of the civil or political law of their nation, and calculated to preserve that distribution of property to which many of their institutions were subservient : as the marriage of an heiress within her own tribe ; of a widow who was left childless, to her husband's brother ; the year of jubilee, when alienated estates revf;rted to the family of the ori- ginal proprietor ; — regulations which were never thought to be binding upon any but the commonwealth of Israel.

* By a statute of James the First, interest above ei»ht pounds per cent, was prohibited, (and, consequently, under that rate allowed,) with this saje provision, That this stalute shall not be construed or expounded in alhic the prartice of icsurr/ in point of religion or conscience.

lliJ CONTRACTS CONCERNING THE

This interpretation is confirmed, 1 think, beyord all (Contro- versy, by the distinction made in the law between a Jew and a foreigner : — " unto a stranger thou mayest lend upon usury, but " unto thy brother thou mayest not lend upon usury ;" a distinc- tion which could hardly have been admitted into a law, which the Divine Author intended to be of moral and of universal obli- gation.

The rate of interest has in most countries been regulated by law. The Roman Law allowed of twelve pounds per cent, which Justinian reduced at one stroke to four pounds. A statute of the thirteenth year of Queen Elizabeth, which was the first that tolerated the receiving of interest in England at all, restrain- ed it to ten pounds per cent. ; a statute of James the First, to eight pounds ; of Charles the Second, to six pounds ; of Queen Anne, to five pounds, on pain of forfeiture of treble the value of the money lent : at which rate and penalty the matter now stands. The policy of these regulations is, to check the power of accumulating wealth without industry ; to give encouragement to trade, by enabling adventurers in it to borroAV money at a moderate price ; and of late years, to enable the state to borrow the subject's money itself.

Compound interest, though forbidden by the law of England, is agreeable enough to natural equity ; for interest detained after it is due, becomes, to all intents and purposes, part of the sum lent.

It is a question which sometimes occurs, how money borrowed in one country ought to be paid in another, where the relative value of the precious metals is not the same. For example, suppose I borrow a hundred guineas in London, where each guin- ea is worth one and twenty shillings, and meet my creditor in the East Indies, where a guinea is worth no more perhaps than nine- teen, is it a satisfaction of the debt to return a hundred guineas ? or must I make up so many times one and twenty shillings ? I should think the latter ; for it must be presumed, that my cred- itor, had he not lent me bis guineas, would have disposed of them

LANDING OP MONEY. US

t!) such a manner as to have now had, in the place of them, so many one^and twenty shillings ; and the question supposes that he neither intended, nor ought to be a sufiferer, by parting with his money t"^ me.

When the relative Value of coin is altered by an act of the state, if the alteration would haue extended to the identical pic° ces which were lent, it is enough to return an equal number of the same denomination, or their present value in any other. As, if guineas were reduced by act of parliament to twenty shillings, so many twenty shillings, as I borrowed guineas, would be a just re-payment. It would be otherwise, if the reduction was owing to a debasement of the coin ; for then respect ought to be had to the comparative value of the old guinea and the new.

Whoever borrows money, is bound in conscience to repay it. This, every man can see ; but every man cannot see, or does not, however, reflect, that he is, in consequence, also bound to use the means necessary to enable himself to repay it. " If he " pay the monej when he has it, or has it to spafe, he does all *' that an honest man can do," and all, he imagines, that is re- quired of him ; whilst the previous measures, which are neces- sary to furnish him with the money, he makes no part of his care, nor observes to be as much his duty as the other ; such as selling a family-seat, or a family-estate, contracting his plan of expense, laying down his equipage, reducing the number of his servants, or any of those humiliating sacrifices, which justice requires of a tiian in debt, the moment he perceives that he has no reasonable prospect of paying his debts without them. An expectation which depends upon the continuance of his own life, will not satisfy an honest man, if a better provision be in his power : for it is a breach of faith to subject a creditor, when we can help it, to the risk of our life, be the event what it will ; that not being the security to which credit was given.

I know few subjects which have been more misunderstoodj than the law which authorizes the imprisonment of insolvent debtors. It has been represented as a gratuitous cruelty, which 15

1*14 LENDING OF MONEY.

contributes nothing to the reparation of the creditor's loss, or t» the advantage of the community. This prejudice arises princi- pally from considering the sending of a debtor to gaol, as an act of private satisfaction to the creditor, instead of a public punish- ment. As an act of satisfaction or revenge, it is always wrong in the motive, and often intemperate and undistinguishing in the exercise. Consider it as a public punishment ; founded upon the same reason, and subject to the same rules, as other punish- ments ; and the justice of it, together with the degree to which it should be extended, and the objects upon whom it may be in- flicted, will be apparent. There are frauds relating to insolven- cy, against which it is as necessary to provide punishment, as for any public crimes whatever : as where a man gets your mo- ney into his possession, and forthwith runs away with it ; or, what \3 little better, squanders it in vicious expenses ; or stakes it at the gaming-table ; in the Alley ; or upon wild adventures in trade ; or is conscious, at the time he borrows it, that he can never repay it ; or wilfully puts it out of his power, by profuse living ; or conceals his effects, or transfers them by collusion to another : not to mention the obstinacy of some debtors, who had rather rot in a gaol, than deliver up their estates ; for, to say the truth, the first absurdity is in the law itself, which leaves it in a debtor's power to withhold any part of his property from the claim of his creditors. The only qaestion is, whether the pun- ishment be properly placed in the hands of an exasperated cred- itor : for which it may be said, that these iVauds are so subtile and versatile, that nothing but discretionary power can over- take them ; and that no discretion is likely to be so well inform- ed, so vigilant, and so active, as that of the creditor.

It must be remembered, however, that the confinement of a debtor in a gaol is a punishment ; and that every punishment supposes a crime. To pursue, therefore, with the extremity of legal rigour, a sufTerer, whom the fraud or failure of others, his own want of capacity, or the disappointments and miscarriage to which all human affairs are subject, have reduced to ruin, mere-

SERVICE. ,115

'\y because we are provoked by our loss, and seek to relieve the pain we feel by that which we inflict, is repugnant not only to humanity, but to justice ; for it is to prevent a provision of law, designed for a different and a salutary purpose, to the gi-atifica- tion of private spleen and resentment. Any alteration in these laws, which could distinguish the degrees of guilt, or convert the service of the insolvent debtor to some public profit, might be an improvement ; but any considerable mitigation of their rigour, under colour of relieving the poor, v/ould increase their hard- ships. For whatever deprives the creditor of his power of coer- cion, deprives him of his security ; and as this must add greatly to the difficulty of obtaining credit, the poor, especially the low- er sort of tradesmen, are the first who would suffer by such a regulation. As tradesmen must buy before they sell, you would exclude from trade two thirds of those who now .carry it on, if none were enabled to enter into it without a capital sufficient for prompt payments. An advocate, therefore, for the interests of this important class of the community, will deem it more eligi- ble, that one out oj a thousand should be sent to gaol by hig creditor, than that the nine hundred and ninety-nine should be straitened and embarrassed, and many of them lie idle, by the avant of credit.

CHAPTER XI.

CONTRACTS OF LABOUR.

SERVICE.

SERVICE in this country is, as it ought to be, voluntary, and by contract ; and the master's authority extends no further than the terms or equitable construction of the contract will jus- 4ify.

JJ6 SERVICE.

The treatment of servants, as to diet, discipline, and accom- modation, the kind and quantity of work to be required of thenri; the intermission, liberty, and indulgence to be allowed them, must be determined in a great measure by custom ; for where the contract involves so many particulars, the contracting par- ties express a few perhaps of the principal, and, by mutual un- derstanding, refer the rest to the known custom of the country in ]ike cases.

A servant is not bound to obey the unlawful commands of his master ; to minister, for instance, to his Unlawful pleasures ; or to assist him in unlawful practices in his profession ; as in smug- gling or adulterating the articles which he deals in. For the servant is bound by nothing but his own promise ; and the obli- gation of a promise extends not to things unlawful.

For the same reason, the master's authority is no justification of the servant in doing wrong ; for the servant's own promise, upon which that authority is founded, would be none.

Clerks and apprentices ought to be employed entirely in the profession or trade which they are intended to learn. Instruc- tion is their wages ; and to deprive them of the opportunities of instruction, by taking up their time with occupations foreign to their business, is to defraud them of their wages.

The master is responsible for what a servant does in the or- dinary course of his employment ; for it is done under a general authority committed to him, which is in justice equivalent to a specific direction. Thus, if I pay money to a banker's clerk, the banker is accountable ; but not if I had paid it to his butler or his footman, whose business is not to receive money. Upon the same principle, if I once send a servant to take up goods up- on credit J whatever goods he afterwards takes up at the same shop, so long as he continues in my service, are justly chargea- ble to my account.

The law of this country goes great lengths in intending a kind of concurrence in the master, so as io charge him with the con- sequences of his servant's conduct. If an inn-keeper's servant

SERVICE. 117

rob his guests, the inn-keeper must make restitution ; if a farri- er's servant lame your horse, the farrier must answer for the damage : and still further, if your coachman or carter drive over a passenger in the road, the passenger may recover from you a satisfaction for the hurt he suffers. But these determinations ^tand, I think, rather upon the authority of the lavy, than any principle of natural justice.

There is a carelessness and facility in " giving characters," as it is called, of servants, especially when given in writing, or ac- cording to some established form, which, to speak plainly of it, is a cheat upon those who accept them. They are given with so little reserve and veracity, " that I should as soon depend," says the author of the Rambler, " upon an acquittal at the Old " Bailey, by way of recommendation of a servant's honesty, as " upon one of these characters." It is sometimes carelessness ; and sometimes also to get rid of a bad servant without the unea- siness of a dispute ; for which nothing can be pleaded but the most ungenerous of all excuses, thaj; the person we deceive is a stranger.

There is a conduct the reverse of this, but more injurious, be- cause the injury falls where there is no remedy ; I mean the ob- structing of a servant's advancement, because you are unwilling to spare his service. To stand in the way of your servant's in- terest, is a poor return for his fidelity ; and affords slender en- couragement for good behaviour in this numerous and therefore important part of the community, it is a piece of injustice which, if practised towards an equal, the law of honour would lay hold of; as it is, it is neither uncommon nor disreputable.

A master of a family is culpable, if he permit any vices among his domestics, which he might restrain by due discipline, and a proper interference. This results from the general obligation to prevent misery when in our power ; and the assurance which we have, that vice and misery at the long run go together. Care to maintain in his family a sense of virtue and religion, received the Divine approbation in the person of Abraham, Gen. xviii. 19, — " I know him, that he will command his children, and his

il8 SERVICE.

" household after him ; and they shall keep the ways of the ** Lord, to do justice and judgment." And indeed no authority seems so well adapted to this purpose, as that of masters of fam- ilies ; because none operates upon the subjects of it with an in- fluence so immediate and constant.

What the Christian Scriptures have delivered concerning the relation and reciprocal duties of masters and servants, breathes a spirit of liberality, very little known in ages when servitude was slavery ; and which flowed from a habit of contemplating mankind under the common relation in which they stand to their Creator, and with respect to their interest in another existence.* " Servants, be obedient to them that are your masters according " to the flesh, with fear and trembling ; in singleness of your " heart, as unto Christ ; not with eye-service, as men-pleasers, " but as the servants of Christ, doing the will of God from the " heart ; with good will, doing service as to the Lord, and not to " men : knowing that whatsoever good thing any man doeth, the " same shall he receive of the Lord, Mhother he be bond or " free. And ye masters, do the same thing unto them, forbear- " ing threatening ; knowing that your Master also is in heaven ; " neither is there I'espect of persons with him." The idea of referring their service to God, of considering him as having ap- pointed them their task, that they were doing his will, and were to look to him for their reward, was new ; and affords a greater ffficurity to the master than any inferior principle, because it tends to produce a steady and cordial obedience, in the place of that constrained service, which can never be trusted out of sight, and which is justly enough called eye-service. The exhoflation k) masters, to keep in view their own subjectiou and accounta- bleness, was no less seasonable.

Eph. Ti. 5—9.

r COMMISSIONS. 119

CHAPTER XII.

CONTRACTS OF LABOUR,

COMMISSIONS.

WHOEVER undertakes another man's business, makes it his own, that is, promises to employ upon it the same care, attention, and diligence, that he would do if it were actually his own ; for he knows that the business was committed to him with that ex- pectation. And he promises no more than this. Therefore an agent is not obliged to wait, inquire, solicit, ride about the coun- try, toil, or study, whilst there remains a possibility of benefit- ting his employer. If he exert so much of his activity, and use such caution, as the value of the business, in his judgment, de- serves ; that is, as he would ha\e thought sufficient if the same interest of his own had been at stake, he has discharged his du- ty, although it should afterwards turn out, that by more activity, and longer perseverance, he might have concluded the business with greater advantage.

This rule defines the duty of factors, stewards, attornies, and advocates.

One of the chief difficulties of an agent's situation is, to know how far he may depart from his instructions, when he sees rea- son to believe, from some change or discovery in the circum- stances of his commission, that his employer, if he were present, would alter his intention. The latitude allowed to agents in this respect, will be different, according as the commission was con- fidential or ministerial ; and according as the general rule and nature of the service require a prompt and precise obedience to orders, or not. An attorney sent to treat for an estate, if he found out a flaw in the title, would desist from proposing the price he was directed to propose ; and very properly. On the

120 COMMSSIONS.

other hand, if the commander-in-chief of an army detatch an of- ficer under hira upon a particular service, which service turn* out more difficult, or less expedient, than was supposed, inso- much that the officer is convinced that his commander, if he were acquainted with the true state in which the affair is found, would recal his orders ; yet, if he cannot wait for fresh directions with- out prejudice to the expedition he is sent upon, he must, at all hazards, pursue those which he brought out with him.

What is trusted to an agent, may be lost or damaged in his hands by misfortune. An agent who acts without pay is clear- ly not answerable for the loss ; for if he give his labour for no- thing, it cannot be presumed that he gave also security for the success of it. If the agent be hired to the business, the question will depend upon the apprehension of the parties at the time of making the contract : which apprehension of theirs must be col- lected chiefly from custom, by which probably it was guided. Whether a public carrier ought to account for goods sent by him ; the owner or master of a ship for the cargo ; the post-of- fice for letters, or bills enclosed in letters, where the less is not imputed to any fault or neglect of theirs, are questions of this sort. Any expression, which by implication amounts to a pro- mise, will be binding upon the agent, without custom ; as where the proprietors of a stage-coach advertise that they will not be accountable for money, plate, or jewels, this makes them ac- countable for every thing else ; or where the price is too much for the labour, part of it may be considered as a premium for insurance. On the other hand, any caution on the part of the owner to guard against danger, is evidence that he considers the risk to be his ; as cutting a bank-bill in two, to send by the post at different times.

Universally, unless a promise, either express or tacit, can be proved against the agent, the loss must fall upon the owner.

The agent may be a sufferer in his own person or proj>erty by the business which he undertakes ; as where one goes a journey for another, and lames his horse by a fall upon the road, qt is

PARTNERSHIP. 121

hurt himself, can the agent in such a case claim a compensation for the misfortune ? Unless the same be provided for by ex- |)ress stipulation, the agent is not entitled to any compensation from his employer on that account ; for where the danger is not foreseen, there can be no reason to believe that the employer en- gaged to indemnify the agent against it : much less where it is foreseen ; for whoever knowingly undertakes a dangerous em- ployment, in common construction, takes upon himself the dan- ger and the consequences ; as where a fireman undertakes for a reward to rescue a box of writings from the flames, or a sailor to bring off a passenger from a ship in a storm.

CHAPTER XIII.

CONTRACTS OF LABOUR. PARTNERSHIP.

I KNOW of nothing upon the subject of partnership that re- quires explanation, but how the profits are to be divided where one partner contributes money and the other labour, which is a common case.

Rule. From the stock of the partnership deduct the sum ad- vanced, and divide the remainder between the monied partner and the labouring partner, in the proportion of the interest of the money to the wages of the labour, allowing such a rate of inter- est as money might be borrowed for upon the same security, and such wages as a journeyman would require for the same labour and trust.

Example. A advances a thousand pounds, but knows nothing

of the business ; B produces no money, but has been brought up

to the business, and undertakes to conduct it. At the end of the

year the stock and the effects of the partnership amount to twelve

16

i22 OFFICES.

liundreil pounds, consequently there arc two liuntlred pounds fo- bs divided. Now, nobody nould lend money upon the event ot the business succeeding, which is A's security, under six per cent. ; therefore A must be avowed sixty pout>ds for the interest of his money, B, before he engaged in the partnership, earned tliirty pounds a-year in the same employment ; bis labour, therefore, ought to be valued at thirty pounds : And the two hundred pounds must be divided between the ])artners in the proportion of sixty to thirty ; that is, A must receive one hun- dred and thirty-three pounds six shillings and eightpence, and B sixty-six pounds thirteen shillings and fourpence.

If there be nothin^g gained, A loses his interest, and B his la- bour ; which is right. If the original stock be diminished, by this rule B loses only his labour, as before, whereas A loses his interest, and part of the principal ; for which eventual dif^ad- vantage A is compensated, by having the interest of his money computed at sis per cent, in the division of the profits, when there is any.

It is true, that the division of the profit is seldom forgotten in the constitution of the partnership, and is therefore commonly- settled by express agreement ; but these agreements, to be equi- table, should pursue the principle of the rule here laid down.

All the partners are bound by what any one of them does in the course of the Ijusiness ; for, quoad hoc, each partner is con- sidered as an authorized agent for thf rest.

CHAPTER XIV.

CONTRACTS OF LABOUR. OFFICES.

IN many offices, as schools, fellowships of colleges, protessor- ships of the universities, and the like, there is a twolold contract- one with the founder, the other with the electors.

OFFICES. 1 2.)

The contract with the founder obliges the incumbent of the office to discharge every duty ajipointed by the charter, statutes, deed of gift, or will of the founder ; because the endowment was given, and consequently accepted for that purpose, and upon these conditions.

The contract wilh the electors extends this obligation to all duties that have been customarily connected with, and reckoned a part of the office, though not prescribed by the founder ; for the electors expect from the person they choose all the duties which his predecessors have discharged ; and -as the person elected cannot be ignorant of their expectation, if he mean to re- fuse this condition he ought to apprize them of his cbjcctiom

And here let it be observed, that the penriissionef the electors js, in cenicienee, an excuse from this last class of duties only ; becaii.se this class results from a >contract te which the electors and the person elected are the only parties. The other class of duties results fiom a diiferent contract.

it is a question of some magnitude and difficulty, what offices vnay be conscientiously supplied by a deputy.

We will state the several objections to the substitution of a deputy ; and then it will be understood, that a deputy may be allowed in all cases to which these objections do not apply.

An office may not be discharged by deputy,

1. Where a particular confidence is reposed iu the person ap- pointed to it ; as the office of a steward, guardian, judge, com- mander-in-chief by land or sea.

2. Where the custom hinders ; as in the case of school-mas- ters, tutors, and of commissions in the army and navy.'

3. Where the duty cannot, from its nature, be so well per- formed by a deputy ; as tlie deputy -governor of a province maj not possess the legal authority, or the actual iniluence of hii principal.

4. Whep. some inconvenioncy would result to the service i« general from the permission of deputies in such cases ; for ex- ample, it is probable that military merit v.ould be much di^-

aS4 OFFICES.

couraged, if the duties belonging to commissions in the army were generally allowed to be executed by substitutes.

The non-residence of the parochial clergy, who supply the duty of their benefices by curates, is worthy of a more distinct consideration. And in order to draw liie queption upon this case to a point, we will suppose the officiating curate to discharge every dutj- whicli his principal, were he present, would be bound to discharge, and in a manner equally beneficial to the parish : under which circumstances, the only objection to the absence of the principal, at least the only one of the foregoing objections, is the last.

And, in my judgment, the force of this objection will be much diminished, if the absent rector or vicar be, in the meantime, engaged in any function or employment of equal importance to the general interest of religion, or of greater. For the whole revenue of the national church may properly enough be consid- ered as a common fund for the support of the national religion ; and if a clergyman be serving the cause of Christianity and Protestantism, it can make little difference, out of what particu- lar portion of this fund, thai is, by the tithes and glebe of what particular parish, his service be requited ; any more than it can prejudice the king's service, that an officer who has signalized hie merit in America, should be rewarded with the government of a fort or castle in Ireland, which he never saw ; but for the cus- tody of which proper provision is made and care taken.

Upon the principle tlius explained, this indulgence is due to none more than to those who are occupied in cultivating or com- municating religious knowledge, or the sciences subsidiary to religion.

This way of considering the revenues of the church as a com- mon fund for the same purpose, is the more equitable, as the value of particular preferments bears no proportion to the par- ticular charge or labour.

But when a man draws upon this fund, whose studies and em- ployments bear no relation to the object of it ; and who is no

LIES. 125

further a minister of the Christian religion, than as a cockade makes a soldier, it seems a misapplication little better than robbery.

And to those who have the management of such matters I sub- mit this question, whether the impoverishing of the fund, by converting the best share of it into annuities for the gay and il- literate youth of great families, threatens not to starve and stifle the little clerical merit that is left amongst us ?

All legal dispensations from residence proceed upon the sup- position, that the absentee is detained from his living by some engagement of equal or of greater public importance. There- fore, if in a case where no such reason can with truth be plead- ed, it be said that this question regards a right of property, and that ail right of property awaits the disposition of law ; that, therefore, if the law, which gives a man the emoluments of a living, excuse him from residing upon it, he is excused in con- ^ science : we answer, that the law does not excuse him by inten- tion^ and that all other excuses are fraudulent.

CHAPTER J^V.

LIES.

A LIE is a breach of promise : for whoever seriously ad dresses his discourse to another tacitly promises to speak the truth because he knows that the truth is expected.

Or the obligation of veracity may be made out from the direct ill consequences of lying to social happiness. Which consequen- ces consist, either in some specific injury to particular indi- viduals, or in the destruction of that confidence, which is essen- tial to the intercourse of human life ; for which latter reason, a lie may be pernicious in its general tendency, and therefore crim- inal, though it produce no particular or visible mischief to any- one.

126 LIE«.

There arc falsehoods which arc not lies ; that is, uliidi are not crimitjal ; as,

1. Where no one is deceived ; which is the case in j)arablcs, fables, novels, jests, tales to create mirth, ludicrous embellish- ments of a story, where the declared design of the speaker is not to inform, but to divert ; compliments in the subscription of a letter, a servant's (le7njing his master, a prisoner's pleading not guilty, an advocate asserting the justice, or his belief of the ju-j- tice of his client's cause. In such instances, no confidence is de- stroyed, because none was reposed ; no promise to speak the truth is violated, because none was given, or understood to be given.

2. Where the person you speak to has no right to know the truth, or, more properly, where little or no inconveniency results from the want of confidence in such cases ; as, where you tell a falsehood to a madman, for his own advantage ; to a robber, to conceal your property ; to an assassin, to defeat or divert him from his purpose. The particular consequence is by the suppo- sition beneficial ; and as to the general consequence, the worst that can happen is, that the madman, the robber, the assassin, will not trust you agnin ; which (beside that the first is incapa- ble of deducing regular conchibions froiu having been once de- ceived, and the two last not likely to come a second time in your way,) is sufficiently compensated by the inmiediate bene- fit which you propose by the falsehood.

It is upon this principle, that, by the laws of war, it is allowed to decicvc an enemy by feints, false colours,* spies, false intel- ligence, and the like ; but by no means in treaties, truces, sig-

* There have been two or three instances of late, of Eng;lish shijis de- coying an enemy iuto their power, by counterfeiting s^ignals of distress ; an artifice which qiight to be reprobated by the common indignation of mankind: For, a few examples of captures effected by this stratagem, would put an end to that promptitude in affording assistance to ships in distress ; which is the best virtue in a seafaring character, and by which the perils of navigation are diminished to all.

LIES. 12 5'

nals of capitulation or surrender : and the ditTerence is, that the former suppose hostilities to continue, the latter are calculated to terminate or suspend them. In the conduct of war, and whilst the war continues, there is no use, or rathor no place, for confi- dence betwixt the contending parties : but in whatever relates to the termination of war, the most religious fidelity is expected, because without it wars could not cease, nor the victors be se- cure, but by the entire destruction of the vanquished.

Many people indulge, in serious discourse, a habit of fiction and exaggeration, in the accounts they give of themselves, of their acquaintance, or of the extraordinary things which they have seen or heard : and so long as tlie facts they relate are indiffer- ent, and their narratives, tliough false, are inoffensive, it may seem a superstitious regard to trutli, to censure them merely for truth's sake.

In the first place, it is almost inipossible to pronounce before- hand, with certainty, concerning any lie, that it is inoffensive. VoJat irrevocabile ; and collects ofttimes accretions in its flight, which entirely change its nature. It may owe possibly its mischief to the ofiiciousness or misrepresentation of those who circulate it ; but the mischief is, nevertheless, in some degree, chargeable upon the original editor.

In the next place, this liberly in conversation defeats its own end. Much of the pleasure, and all the benefit of conversation, depends upon our opinion of the speaker's veracity ; for which this rule leaves no foundation. The faith indeed of a hearer must be extremely perplexed, who considers the speaker, or bo^ lieves that the speaker considers himself, as under no obligation to adhere to truth, but according to the particular importance of what he relates.

But besides and above both these reasons, tEliite lies always introduce others of a darker conplexion. I have seldom known any one who deserted truth in trifles, that could be trusted in matters of importance. Nice distinctions are out of the question, upon occasions which, like those of speech, return every hour.

128 LIES.

The habit therefore, when once formed, is easily extended to serve the designs of malice or interest ; — like all habits, it spreads indeed of itself.

Piotis frauds, as they are improperly enough called, pretend- ed inspirations, forj^ing books, counterfeit miracles, are imposi- tions of a more serious nature, it is possiljle that they may sometimes, though seldom, have been set up and encouraged, with a design to do good : but the good they aim at, requires that the belief of them should be perpetual, which is hardly possible ; and the detection of the fraud is sure to disparage the credit of all pretensions of the same nature. Christianity has suflFered more injury from this cause, than from all other cau- ses put together.

As there may be falsehoods which are not lies, so there may be lies, without literal or direct falsehood. An opening is al- ways left for this species of prevarication, when the literal and grammatical signitication of a sentence is different from the pop- ular and customary meaning. It is the wilful deceit that makes the lie ; and we wilfully decieve, when our expressions are not true in the sense in which we believe the hearer apprehends them. Besides, it is absurd to contend for any sense of words, in opposition to usage ; for, all senses of all words are founded upon usage, and upon nothing else.

Or, a man may act a lie, as by pointing his finger in a wrong- direction, when a traveller incjuires of him his road ; or when a tradesman shuts up his windows, to induce his creditors to believe that he is abroad ; for, to all moral purposes, and therefore as to veracity, speech and action are the same ; speech being only a mode of action.

Or, lastly, there may be lies of omission. A writer of English history, who, in his account of the reign of Charles the First, should wilfully suppress any evidence of that prince's despotic measures and designs, might be said to lie ; for, by entitling his book a History of Eiighmd, he engages to relate the whole truth of the history, or at least all he knows of it.

^^Ws!^

OATHS, 129

CHAPTER XVI,

OATHS.

I. Forms of Oaths,

II. Signification.

III. Lavafulness .

IV. Obligationi

V. What oaths do not hind.

VI. In what sense oaths are to be interpreted.

I. THE forms of oaths, like other religious cernmonies, have been ahvays various ; but consisting, for the most part, of some bodily action,* and of a prescribed form of words. Amongst the Jews, the juror held up his right hand towards heaven, which explains a passage in the 144th Psalm ; " Whose mouth speak- " eth vanity, and their right hand is a right hand of falsehood.'* The same form is retained in Scotland still. An oath of fidelity was taken, by the servant's putting his hand under the thigh of his lord, as Eliezer did to Abraham, Gen. xxiv. 2. ; from whence, with no great variation, is derived perhaps the form of doing homage at this day, by putting the hands between the knees, and within the hands of the liege.

Amongst the Greeks and Romans, the form varied with the subject and occasion of the oath. In private contracts, the par- ties took hold of each other's hand, whilst they swore to the per- formance ; or they touched the altar of the god, by whose divin- ity they swore. Upon more solemn occasions, it was the custom

* It is commonly thought that oaths arc denominated corporeal oaths ftom the bodily action which accompanies them, of laying the right hand upon a book containing' the four Gospels. This opinion, however, ap- pears to be a mistake ; for the term is borrowed from the ancient usage of touching, upon these occasion^, the corporale, or cloth which covered the consecrated elements. 17

iSO O^TUS.

to slay a victim ; and the beast being struck down, with certain ceremonies and invocations, gave birth to the expressions rtf^nn e^nav, ferire pactum ; and to our English phrase, translated from these, of " striking a bargain."

The forms of oath in Christian countries are also very differ- ent ; but in none, I believe, worse contrived, either to convey the meaning, or impress the obligation of an oath, tlian in our own. The juror with us, after repeating the promise or affirma- tion which the oath is intended to confirm, adds, " So help me " God :"" or more frequently the substance of the oath is repeat- ed to the juror by the officer or magistrate who a^iministers it, adding in the conclusion, " So help you God." The energy of the sentence resides in the particle $o ; so, that is, hac lege, upon condition of my speaking the truth, or performing this promise, may God help me, and not otherwise. The juror, whilst he hears or repeats the words of the oath, liohls his right hand upon a Bible, or other book containing the four Gospels. The conclusion of the oath sometimes runs, " ita me Deus adjuvet, " et haec sancta evangelia," or, " so help me God, and the con- ■'■ tents of th's book ;" which last clause forms a connexion be- tween the words and action of the juror, which before was want- ing. The juror then kisses the book : the kiss, however, seems rather an act of reverence to the contents of the book (as, in the popish ritual, the priest kisses the Gospel bet'ore he reads it,) than any part of the oath.

This obscure and elliptical form, together with the levity and frequency with -which it is administered, has brought about a general inadvertency to the obligation of oaths ; which, both in a religious and political view, is much to be lamented : and it merits public consideration, whetlier the requiring of oaths on so many frivolous occasions, especially in the Customs, and in the qualification for petty offices, has any oilier effect, than to make them cheap in the minds of the people. A pound of tea cannot travel regularly from the ship to the consumer, without costing Haifa dozen oaths at least : and the same security for the due

OATHS. 131

discharge of their office, namely, that of an oath, is required from a churchwarden and an archbishop, from a potty constable and the chief justice of England. Let the law continue its own sanctions, if they be thought requisite ; but let it spare the so- lemnity of an oath. And where it is necessary, from the want of something better to depend upon, to accept men's own word or own account, let it annex to prevarfcation penalties propor- tioned to the public consequence of the offence.

II. But whatever be the form of an oath, the signification is the same. It is "the calling upon God to witness, i. e. totake "' notice of what we say," and " invoking his vengeance, or re- " nouncing his favour, if what we say be false, or what we pro- " mise be not performed."

III. Q,uakere and Moravians refuse to swear upon any occa- ■fzion ; founding their scruples concerning the lawfulness of oaths upon our Saviour's prohibition, Matt. v. 34. " I say unto you,, " Swear not at all."

The answer which we give to this objection cannot be under- -stood, without first stating the whole passage : " Ye have heard " that it hath bten said by them of old time, Thou shalt not for- eswear thyself, but shall perform unto the Lord, thine oaths. " But I say unto you, Swear not at all ; neither by heaven, for " it is God's throne ; nor by the earth, for it is his footstool ; " neither by Jerusalem, for it is the city of the great King, " Neither shalt thou swear by thy head, because thou canst not '"make one hair white or black. But let your communication -" be, Yea, yea ; Nay, nay : for whatsoever is'niore than these, "" cometh of evil."

To reconcile with this passage of Scripture the practice oi swearing, or of taking oaths, when required by law, the following •observations must be attended to.

1. It does not appear, that swearing " by heaven," " by the " earth," " by Jerusalem," or " by their own head," was a form of swearing ever made use of amongst the Jews in judicial oaths-; ■and, consequently, it is not probable that they were JiKliciaii

Vd'i OATHS.

oaths which Christ had in his mind when he mentioned those irt- stances.

2, As to the seeming universality of the prohibition, " Swear " not at all," the emphatic clause "■ not at all" is ti> be read in connexion with what follows ; " not at all," i. e. neither " by " the heaven," nor " by the earth," nor " by Jerusalem," nor *' by ihy head :" " not at all,'''' docs not mean upon no occasion, but by none of these forms. Our Saviour's argument seems to suppose, that the people, to whom he spake, made a distinction between swearing directly by " the name of God," and swearing by those inferior objects of veneration, " the heavens," " ti»e " earth," " Jerusalem," or " their own head." In opposition to which distinction, he tells them, that on account of the rela- tion which these things bore to the Supreme Being, to swear by any of them, was in effect and substance to swear by him ; " by " heaven, for it is hjs throne ; by the earth, for it is his footstool ; " by Jerusalem, for it is the city of the great King ; by thy " head, for it is his workmanship, not thine, — thou canst not " make one hair white or black ;" for which reason he says, " Swear not at all ;^^ that is, neither directly by God, nor indi- rectly by any thing related to him. This interpretation is great- ly confirmed by a passage in the twenty-third chapter of the same Gospel, where a similar distinction, made by the Scribes and Pharisees, is replied to in the same manner.

3. Our Saviour himself being " adjured by the living God," to declare whether he was the Christ, the Son of God, or not, condescended to answer the high-priest, without making any ob- jection to the oath (for such it was) upon which he examined him. — " God is my witness," says St. Paul to the Romans, " that " without ceasing I make mention of you in my prayers :" and to the Corinthians still more strongly, " 1 call God for a record •' upon my soul, that, to spare you, I came not as yet to Co- *' rinth." Both these expressions contain the nature of oaths. The epistle to the Hebrews speaks of the custom of swedring ju- dicially, without any mark of censure or disapprobation : " Mc{»

OATHS. , 133

*■' verily swear by the greater ; and '" an oath, lor confirmation, is " to them an end of all strife."

Upon the strength of these reasons, we explain our Saviour's words to relate, not to judicial oaths, but to the practice of vain, wanton, and unauthorized swearing, in common discourse. St. James's words, chapter v. 12. are not so strong as our Saviour's, and therefore admit the same explanation with more ease.

IV. Oaths are nugatory, that is, carry with them no proper force or obligation, unless we believe that God will punish false swearing with more severity than a simple lie, or breach of pro- mise ; for which belief there are the following reasons : —

1. Perjury is a sin of greater deliberation. The juror has, I believe, in fact, the thought? of God and of religion upon his mind at the time ; at least, there are very few who can shake ^hem otF entirely. He offends, therefore, if he do otTend, with a high hand ; in the face, that is, and in defiance of the sanc- tions of religion. His offence implies a disbelief or contempt of God's knowledge, power, and justice ; which cannot be said of a lie where there is nothing to carry the mind to any reflection upon the Deity, or the divine attributes at all.

2. Perjury violates a superior confidence. Mankind must trust to one another ; and they have nothing better to trust to than one another's oath. Hence legal adjudications, which gov- fsrn and affect every right and interest on this side the grave, of necessity proceed and depend upon oaths. Perjury, therefore, jn its general consequence, strikes at the security of reputation, property, and even of life itselt. A lie cannot do the same mis- chief, because the same credit is not given to it.*

3. God directed the Israelites to swear by his name \] aiid was pleased, " in order to show the immutability of his owo pounsel,"! to confirm his covenant with that people by an oath ;

* Except, indeed, where a Quaker's or Moraviau's affirmation is ac- cepteJ ia the place of an oath ; in which case, u lie partakes, so far as this reason extends, of the nature auJ guilt of perjury.

t Deut. vi. If], X. 20. t Heb. vi. 17,

134 OATH IN EVIDENCE.

neither of which it is probable he would have done, had he not intended to represent oaths as having sonne meaning and ofTect beyond the obligation of a bare promise ; which effect must l)e owing to the severer punishment with which he will vindicate the authority of oaths.

V. Promissory oaths are not binding, where the promise itself would not be so : for the several cases of which, see the Chap- ter of Promises.

VI. As oaths are designed for the security of the imposer, it is manifest they must be performed and interpreted in the sense in which the imposer intends them ; otherwise they afford no security to liim. And this is the meaning and reason of the rule " jurare in animum imponentis ;" wi)ich rule the reader is de- sired to carry along with him, whilst we proceed to consider cer- tain particular oaths, which are either of greater importance, or more likely to fall in our way, than others.

CHAPTER XVII.

OATH IN EVIDENCE.

THE witness swears " to speak the truth, the whole truth, " and nothing but the truth, touching the matter in question."

Upon which it may be observed, that the designed conceal- ment of any truth, which relates to the matter in agitation, is as much a violation of the oath, as to testify a positive falsehood ; and this whether the witness be interrogated to that particular point or not. For when the person to be examined, is sworn up- on a voir dire, that is, in order to inquire, whether he ought to be admitted to give evidence in the cause at all, the form runs thus : " You shall true answer make to all such questions as " shall be asked you :" But when he comes to be sworn in chief, he swear.? " to speak the whole truth," without restraining it, as

OATH IN EVIDENCE. 133

before, to the questions that shall be asked : which difference shows, that tlie law intends, in this latter case, to require of the witness, that he give a complete and unreserved account of what he knows of the subject of the trial, whether the qi;estions pro- posed to him reach the extent of his knowledge or not. So that if it be inquired of the witness afterwards, why he did not inform the court so and so, it is not a sufficient, though a very common answer, to say, " because it was never asked me."

I know but one exception to this rule ; which is, when a full discovery of the truth tends to accuse the witness himself of some legal crime. The law of England constrains no man to become his own accuser ; consequently imposes the oath of testimony with this tacit reservation. But the exception must be confined to legal crimes. A point of honour, of delicacy, or of reputation, may make a witness backward to disclose some circumstance with which he is acquainted ; but is no excuse for concealment, unless it could be shown, that the law which imposes the oath, intended to allow this indulgence to such motives. The excep- tion is also withdrawn by a compact between the magistrate and the witness, when an accomplice is admitted to give evidence against the partners of his crime.

Tenderness to the prisoner is a specious apology for conceal- ment, but no just excuse : for if this plea be thought sufficient, it takes the administration of penal justice out of the hands of judges and juries, and makes it depend upon the temper of pro- secutors and witnesses.

Questions may be asked, which are irrelative to the cause, which affect the witness himself, or some third person ; in which, and in all cases where the witness doubts of the pertinency and propriety of the question, he ought to refer his doubts to the court. The answer of the court, in relaxation of the oath, is au- thority enough to the witness ; for the law which imposes the oath, ipay remit what it will of the obligation ; and it belongs to the court to fJeclare what the mind of the law is. Nevertheless, it cannot be said universally, that the answer of the court is cou-

■4'

136 OATH or ALLEGIANCE.

elusive upon the consciei>ce of the witness ; for his obligation de- pends upon what he apprehended, at the time of taking the oath, to be the design of Llie law in imposing it, and no after-requi.sition or explanation by the court can carry the obligation beyond that^

CHAPTER XVIII.

OATH OF ALLEGIANCE.

*' I DO sincerely promise and swear that I will be faithful *' and bear true allegiance to his Majesty King George." Foi'- merly the oath of allegiance ran thus : " I do promise to be true " and faithful to the King, and his heirs, and truth and faith " to bear, of life and limb, and terrene honour ; and not to " know or hear of any ill or damage intended him, without de- " fending him therefrom ;" and was altered at the Revolutior\ to the present form. So that the present oath is a relaxation of the old one. And as the oath was intended to ascertain, not so much the extent of the subject's obedience, as to whom it was due, the legislature seems to have wrapped up its meaning upon the former point, in a word purposely made choice of for its general and indeterminate signification.

It will be most convenient to consider, first, what the oath ex- cludes, as inconsistent with it ; secondly, what it permits.

1. The oath excludes all intention to support the claim or pretensions of any other person or persons than the reigning sove- reign, to the crown and government. A Jacobite, who is per- suaded of the pretender's right to the crown, and who moreover designs to join with the adherents of that cause to assert this right, whenever a proper opportunity, with a reasonable pros- pect of success presents itself, cannot take the oath of allegiance ; or, if he could, the oath of abjuration follows, which contains an express renunciation of all opinions in favour of the claim of the exiled family.

OATH OF ALLEGIANCE. IS*?

2. Th^ onth excludes all design, at the time, of attempting to depose the reigning prince, for any reason whatever. Let the justice of the Revolution be what it would, no honest man could have taken even the present oath of allegiance to James the Second, who entertained at the time of taking it, a design of joining in the measures that were entered into to dethrone him.

3. The oath forbids the taking up of arms against the reigning prince, with views of private advancement, or from motives of personal resentment or dislike. It is possible to happen in this, what frequently happens in despotic governments, that an ambi- tious general, at thfe head of the military force of the nation, by a conjuncture of fortunate circumstances, and a great ascendency over the minds of the soldiery, might depose the prince upon the throne, and make way to it for himself, or for some creature of his own. A person in this situation w'ould be withheld from such an attempt by the oath of allegiance, if he paid any regard to it. If there were any who engaged in the rebellion of the year forty-five, with the expectation of titles, estates, or prefer- ment ; or because they were disappointed, and thought them- selves neglected and ill-used at court ; or because they enter- tained a family animosity, or personal resentment against the king, the favonrite, or the minister ; — if they were induced to take up arms by these motives, they added to the many crimes of an unprovoked rebellion, that of wilful and corrupt perjury* If the same motives determined others^ lately, to connect them- selves with the American opposition, their part in it was charge- able with perfidy and falsehood to their oath, whatever was the Justice of the opposition itself, or however well founded theif particular complaint might be of private injuries.

We are next to consider wliat the oath of allegiance permits, or does not require.

1. It permits resistance to the king, when his ill behaviour of

imbecility is such as to make resistance beneficial to the com-"

munity. It may fairly be presumed, that the Convention Par^

liament, which introduced the oath in its present form, did not

18

J3u UAIK OF ALLEGIANCE.

intend, by imposing it, to exclude all resistance, since the mem- bers of that legislature had many of tliem recently taken up arms against J;unes the Second and the very authority hy which they sat together was itself the effect of a successful opposition to an acknowledged.sovereign. Some resistance, therefore, was meant to be allowed ; and if any, it must be that which has the public interest for its object.

2. The oath does not require obedience to such commands of the king as are uDauthorized by law. No such obedience is im- plied by the terms of the oath ; the fidelity there promised, is intended of fidelity in opposition to his enemies, and not in op- position to law ; and allegiance, at the utmost, signifies only obedience to lawful commands. Therefore, if the king should issue a proclamation, levying money, or imposing any service or restraint upon the subject, beyond what the crown is empowered by law to enjoin, there would exist no sort of obligation to obey such a proclamation in consequence of having taken the oath of allegiance.

3. The oath does not requii'e that we should continue our al- legiance to the king, after he is actually and absolutely deposed, driven into exile, carried away captive, or otherwise rendered incapable of exercising the regal office. The prt^.nise of allegi- ance implies, and is understood by all parties to suppose, that the person to whom the promise is made continues king ; con- tinues, that is, to exercise the power, and afford the protection, which belongs to the office of king; for, it is the possession of this power, which makes such a particular person the object of the oath ; without it, why should I swear allegiance to this man, rather than to any other man in the kingdom ? Besides, the con- trary doctrine is burthened with this conseqence, that every con- quest, revolution of government, or disaster which befals the per- son of the prince, must be followed by public and perpetual anarchr.

OATH AGAfNST BRIBERY,— SIMONY, 130

CHAPTER XIX.

OATH AGAINST BRIBERY IN THE ELECTION OF MEMBERS OF PARLIAMENT.

" I DO swear, I have not received, or had, by myself, or any " person whatsoever in trust for me, or for my use and benefit, " directly or indirectly, any sum or sums of money, office, place, *' or employment, gift, or reward ; or any promise or security, " for any money, office, employment, or gift, in order to give ■" my vote at this election."

The sereral contrivances to evade this oatb, such as tlie elec- iors a-ccepting motiey under colour o( borrovring, and giving a promraissory iwte, or other security, for it, which is cancelled after the election ; receiving money from a stranger, or a person in disguise, or out of a drawer, or purse, left open for the pur- pose ; or promises of money to be paid after the election ; or stipulating for a place, living, or other private advantage of any kind ; if they escape the legal penalties of perjury, incur the moral guilt : for they are manifestly within the mischief and de- sign of the statute which imposes the oath, and within the ternif. indeed of the oa(h itself; for the word " indirectly" is inserted on purpose to comprehend such cases as these.

CHAPTER XX.

OATH AGAINST SIMONY.

FROM an imaginary resemblance bet^veen the purchase of a benefice and Simon Magus' attempt to purchase the gift of the Holy Ghost, (Acts, viii. 19.) the obtaining of a presentation by pecuniary considerations has been called Simony.

HO OATH AGALNbT SIMOM.

The sale of advowsons is inse'parable from tlir right of priyale patronage ; as patronage would otherwise devolve to the must in- digent, and for that reason the mo'^t improper hands it could be placed in. Nor did the law ever intend to prohibit the passing of advowsons from one patron to another ; hut to restrain the patron, whp possesses the right of presenting at the vacancy, from being influenced, in the choice of his presenter, by a brit/e^ or benefit to himself. It is the same distinction with that which obtains in a freeholder's vote for his represeiitative in parliament. The right of voting, that is, the freehold to which the right per- tains, may be bought and sold as freely as any other property ; but the exercise of that right, the vote itself, may not be pur- chased, or influenced by money.

For this purpose, the law imposes upon the presentee, who is generally concerned in the simony, if there be any, the follow- ing oath : " I do swear, that I have made no'simoniacul payment, ^' contract, or promise, directly or indirectly, by myself, or by <' any other to my knowledge, or with my consent, to any per- " son or persons whatsoever, for or concerning the procuring and " obtaining of this ecclesiastical place, &c. ; nor will, at any *' time hereafter, perform, or satisfy, any such kind of paynicnt, *' contract, or promise, made by any other without my knowledge " or consent : So help me God, through Jesus Christ."

It is extraordinary that Bishop Gibson should have thought this oath to be against all promises whatsoever, when the terms of the oath expressly restrain it to simoniacal promises ; and the law alone must pronounce what promises, as well as what pay- ments and contracts are simoniacal, and consequently come within the oath ; and what arc not so.

Now the law adjudges to be simony,

1. All payments, contracts, or promises, made by any person for a benefice already vacant. The advowson of a void turn, by law, cannot be transferred frpm one patron to anodier ; there- fore, if the void turn be procqrpd by money, it must be by a pecuniary influence upon the Ihpn subsisting patron in the choice of his proscnlee, which is the veiy pvaotico the law condemns,

OATH AGAINST SIMONY. 141

2. A clergyman's purchasing of the next turn of a benefice for himself, " directly or indirectly," that is, by himself, or by another person with his money. It does not appear that the law prohibits a clergyman from purchasing the perpetuity of a pat- ronage, more than any other person : but purchasing the perpe- tuity, and forthwith selling it again, with a reservation of the next turn, and with no other design than to possess himself of the next turn, is m fraudem legis, and inconsistent with the oath.

3. The procuring of a pie.ce of preferment, by ceding to the patron any rights, or probable rights, belonging to it. This is simony of the worst kind ; for it is not only buying preferment, but robbing your successor to pay for it.

4. Promises to the patron of a portion of the profit, of a re- mission of tithes and dues, or other advantages out of the produce uf the benefice : which kind of compact is a pernicious conde- scension in the clergy, independent of the oath ; for it tends to introduce a practice, which may ver}' soon become general, of giving the revenues of churches to the lay patrons, and supply- ing the duty by indigent stipendiaries.

5. General bonds of resignation, that is, bonds to resign upoa demand.

I doubt not but that the oath is binding upon the consciences of those who take it, though I question much the expediency of requiring it. It is very fit to debar public patrons, such as the king, the lord chancellor, bishops, ecclesiastical corporations, and the like, from this kind of traffic : because from them may be expected some regard to the qualifications of the persons whom they promote. But the oath lays a snare for the in- tegrity of the clergy ; and I do not perceive, that the requiring of it in cases of private patronage produces any good etTect, suf- ficient to compensate for this danger.

Where advowsons are holden along with manors, or other principal estates, it would be an easy regulation to forbid that they should ever hereafter be separated ; and would at least keep church-preferment out of the hands of brokex's.

142 OAIITS TO OBSERVE LOCAL STATUTES.

CHAPTER XXI.

OATHS TO OBSERVE LOCAL STATUTES.

MEMBERS of colleges in the Universities, and of other an- cient foundations, are required to swear to the observance of their respective statutes : which observance is become in some cases unlawful, in others impracticable, in others useless, in others in- convenient.

Unlawful directions are countermanded by the authority which «ade them unlawful.

Impracticable directions are dispensed with by the necessity of the case.

The only question \-, how far the members of these societies may take upon themselves to judge of the hiconvenicnc.y of any particular direction, and make that a reason for laying aside the ©bservation of it.

The animus imponentis, which is the measure of the juror's duty, seems to be satisfied, when nothing is omitted, but what, from some c'^'Uige in the reason and circumstances under which it was prescribed, it may fairly be presumed that the founder himself would have dispensed with.

To bring a case within this rule, the inconvcniency must,

1. Be manifest ; concerning which there is no doubt.

2. It must arise from some change in the circumstances of the institution ; for, let the inconveniency be what it will, if it ex- isted at the time of the foundation, it must be presumed that the founder did not deem the avoiding of it of sufficient importance to alter his plan.

3. It must not only be inconvenient in the general, (ibr so may the institution itself be,) but prejudicial to the particular end proposed by the institutution ; for it is this last circumstance which proves that the founder would have dispensed with it in pursuance of his own purpose.

ARTICLES OF RELIGION, US

The statutes of some colleges forbid the speaking of any lan- guage but Latin within the walls of the college ; direct that a cer- tain number, and not fewer than that number, be allowed the use of an apartment amongst them ; that so many hours of each day be employed in public exercises, lectures, or disputations ; and some other articles of discipline, adapted to the tender years of the students who in former times resorted to universities. Were colleges to retain such rules, nobody now-a-days would come near them. They are laid aside therefore, though parts of the statutes, and as such included within the oath, not merely be- cause they are inconvenient, but because there is sufficient rea- son to believe, that the founders themselves would have dispensed witli them as sul)versive of their own designs.

CHAPTER XXII.

SUBSCRIPTION TO ARTICLES OF RELIGION.

SUBSCRIPTION to articles of religion, though no more than a declaration to the subscriber's assent, may properly enough be considered in connexion with the subject of oaths, because it is governed by the same rule of interpretation :

Which rule is the animus iuiponentis.

The inquiry, therefore, concerning subscription will be, quis imposuit, et quo animo ?

The bishop who receives the subscription is not the imposer, any more than the cryer of a court, who administers the oath to the jury and witnesses, is the person that imposes it ; nor, con- sequently, is the private opinion or interpretation of the bishop of any signification to the subscriber, one way or other.

The compilers of the Thirty-nine Articles are not to be con- sidered as the imposers of subscription, any more than the framer or drawer up of a law is the person that enacts it.

144 ARTICLES OF RELIGION.

The legislature of the 13th Eliz. is the imposcr, whose inteR- lion the subscriber is bound to satisfy.

Tiiey who contend, that nothing less can justify subscription to the Thirty-nine Articles, than the actual belief of each and every separate proposition contained in them, must suppose, that the legislature expected the consent of ten thousand men, and that in perpetual succession, not to one controverted proposition, but to many hundreds. It is difficult to conceive how this could ke expected by any who observed the incurable diversity of hu- man opinion upon all subjects short of demonstration.

If the authors of the law did not intend this,' what did they intend ?

They intended to exclude from offices in the church,

1. All abettors of Popery :

2. Anabaptists, who were at that time a powerful party on the Continent :

3. The Puritans, who were hostile to the episcopal constitu- tion ; and in general the members of such leading sects, or foreign establishments, as threatened to overthrow our own.

Whoever finds himself comprehended within these descrip- tions, ought not to subscribe.

During the present state of ecclesiastical patronage, in which private individuals are permitted to impose teachers upon par- ishes, with which they are often little or not at all connected, some limitation of the patron's choice may be necessary, to pre- vent unedifying contentions between neighbouring teachers, or between the teachers and their respective congregations. But this danger, if it exist, may be provided against with equal effect, by converting the articles of faith into articles of peace.

^*M:

WILLS. 145

CHAPTER XXIIL

WILLS.

THE fundamental question upon this subject is, W^hether wills are of natural or of adventitious right ? that is, whether the right of directing the disposition of property after his death belongs to a man in a state of nature, and by the law of nature ; or wheth- er it be given him entirely by the positive regulations of the country he lives in ?

The immediate produce of each man's personal labour, as the tools, weapons, and utensils which he Manufactures, the tent or hut he builds, and perhaps the flocks and'befds'-whfch he breeds and rears, are as much his own as the labour .wa?j which he em- ployed upon them ; that is, are his property naiuraJly and abso- lutely, and consecjuently he niay give or leave th^ to whom he pleases, there being nothing to limit the continuance of his right, or to restrain the alienation of it.

But every other species of property, especially property iu land, stands upon a dififerent foundation.

We have seen, in the Chapter upon Property, that, in a state of nature, a man's right to a particular spot of ground arises from his using it, and wanting it ; consequently ceases with the use and want : so that at his death the estate reverts to the community, without any regard to the last owner's will, or even any prefer- ence of his family, further than as they become the first occu- piers after him, and succeed to the same want and use.

Moreover, as natural rights cannot, like rights created by act of parliament, expire at the end of a certain number of years, if the testator have a right, by the law of nature, to dispose of his property one moment after his death, he has the same right to direct the disposition of it, for a million of ages after Lim ; which is absurd.

19

14l; wills.

The ancient apprehensions of mankind upon the subject were conformable to this account of it : for wills have been introdu- ce<l into most countries by a positive act of the state ; as by the Laws of Solon into Greece ; by the Twelve Tables into Rome ; and that not till after a considerable progress had been made in legislation, and in the economy of civil life. Tacitus relates, that amongst the Germans they were disallowed ; and what is more remarkable, since the Conquest, lands in this country could not be devised by will, till within little more than two hundred years ago, when this privilege was restored to the subject, by an act of parliament, in the latter end ol the reign of Henry the Eighth.

No doubt, many beneficial purposes are attained by extend- ing the owner'^s power over his property beyond his life, and beyond his natural right. It invites to industry ; it encourages marriage ; it secures the dutifulness and dependency of children : but a limit must be assigned to the duration of this power. The utmost extent to which, in any case, entails are allowed by the laws of England to operate, is during the lives in existence at the. death of the testator, and one and twenty years beyond these ; after which, there are ways and means of setting them aside.

From the consideration that wills are the creatures of the mu- nicipal law which gives them their efficacy, may be deduced a determination of the question, whether the intention of the tes- tator in an informal, will be binding upon the conscience of those who by operation of law, succeed to his estate. By an informal \\]\\, I moan a will void in law, for want of some requi- site formality", though no doubt be entertained of its meaning or authenticity : as, suppose a man make his will, devising his freehold estate to his sister's son, and the wJll be attested by two only, instead of three subscribing witnesses ; would the brother's son, who is heir at law to the testator, be bound in conscience to resign his claim to the estate, out of deference to his uncle's intention ? or, on the contrary, would not the de- visee under the will be bound, upon discovery of this flaw in it.

WILLS. liT

;tp sarrender the estate, suppose he had gained possession of it, to the heir at law ?

Generally speaking, the heir at law is not bound by the inten- tion of the testator ; for, the intention can signify nothing, unless the person intending have a right to govern the descent of the estate. That is the first question. Now this right the testator can only derive from the law of the land : but the law confers the right upon certain conditions, which conditions he has not complied with ; therefore, the testator can lay no claim to the power which he pretends to exercise, as he hath not entitled himself to the benefit of that law, by virtue of which alone the estate ought to attend his disposaL Consequently, the devisee under the will, who, by concealing this flaw in it, keeps posses- sion of Ihe estate, is in the situation of any other person, who avail? himself of his neighbour's ignorance to detain from him fcis prcperty^ The will is so much waste paper, Irom the defect ol right ia the person wiio made it. Nor is this catching at au oxpressicn of law to pervert the substantial design of it : for I apprehend it to be the deliberate mind of the legislature, that 110 will should take effect upon real estates, unless autlienticated in the precise manner which ihe statute describes. Had testa- mentary dispositions been founded, in any natural right, inde- pendent of positive constitutions, I should have thought difler- •ently of this question : for then I should have considered the lavr rather as refusing its assistance to enforce the right of the devisee, than as extinguishing or working any alteration in the right itself.

And after all, I should choose to propose a case, where no consideration of pity to distress, of duty to a parent, or of grati- tude to a benefactor, interfered widi the general rule of justice. The regard due to kindred in the disposal of our fortune, (ex- cept the case of lineal kindred, which is different,) arises either from the respect we owe to the presumed intention of the an- cestor from whom we received our fortunes, or from the expecta- tions which we have encouraged. The intention of the ancestor

148 WILLS.

is presumed with greater certainty, as v.ell as entitled to more respect, the fewer degrees he is removed from us ; Avhich makes the difTcrence in the difl'crent degrees of kindred. It may he presumed to he a father's intention and desire, that the inheri- tance he leaves, after it has served the turn and generation of one son, should remain a provision for the families of his other children, equally relatcd-and dear to him as the eldest. Who- ever, therefore, v\ ithout cause, gives away his patrimony from his hrother's or sister's family, is guilty not so much of an inju- ry to them, as of ingratitude to his parent. The deference due from the possessor of a fortune to the presumed desire of his, ancestor, will also vary with this circumstance, whether the ancestor earned the fortune by his personal industry, acquired it by accidental success, or only transmitted the inheritance which he received.

Where a man's fortune is acquired by himself, and he has done nothing to excite expectation, but rather has refrained from those particular attentions which tend to cherish expectation, he is perfectly disengaged from the force of the above reasons, and at liberty to leave his fortune to his friends, to charitable or puljlic purposes, or to whom he will ; the same blood, proximi- ty of blood, and the like, are merely modes of speech, imply- ing nothing real, nor any obligation of themselves.

There is always, however, a reason for providing for our poor relations, in preference to others who may be equally necessi- tous, which is, that if we do not, no one else will ; mankind, by an established consent, leaving the reduced branches of good families to the bounty of their wealthy alliances.

The not making a ulU, is a very culpable omission, where it is attended with the following eiVects : where it leaves daugh- ters, or younger children, at the mercy of the eldest son ; where it distributes a personal fortune equally amongst the children, although there be no equality in their exigences or situations ; where it leaves an opening for litigation ; or, lastly, and princi- pally, where it defrauds creditors : for, by a defect in our laws.

WILLS. 149

which has been long and strangely overlooked, real estates are not subject to the payment of debts by simple contract, unless made so by will ; although credit is, in fact, generally given to the possession of such estates : he, therefore, who neglects to make the necessary appointments for the payment of his debts, as far as his effects extend, sins, as it has been justly said, in his grave : and if he omits this on purpose to defeat the demands of his creditors, he dies with a deliberate fraud in his heart.

Anciently, when any one died without a will, the bishop of the diocese took possession of his personal fortune, in order to dispose of it for the benefit of his soul, that is, to pious or chari- table uses. It became necessary, therefore, that the bishop should be satisfied of the authenticity of the will, when there was any, before he resigned the right he had to take possession of the dead man's fortune in case of intestacy. In this way, wills, and contrvoersies relating to wills, came within the cognizance of ecclesiastical courts ; under the jurisdiction of which, wills of personals (the only wills that were made formerly) still continue, though in truth, no more now-a-days connected with religion, than any oth«r instruments of conveyance. This is a peculiarity in the English law.

Succession to intestates must be regulated by positive rules of law, there being no principle of natural justice whereby to ascer- tain the proportion of the different claimants : not to mention that the claim itself, especially of collateral kindred, seems to have little foundation in the law of nature.

These regulations should be guided by the duty and presumed inclination of the deceased, so far as these considerations can be consulted by general rules. The statutes of Charles the Second, commonly called the Statutes of Distribution, which adopt the rule of the Roman law in the distribution of personals, are suffi- ciently equitable. They assign one-third to the widow, and two-thirds to the children ; in case of no children, one-half to the widow, and the other half to the next of kin ; where neither widow aor lineal descendants survive, the whole to the next of kin,

16« WILLS.

and to be equally divided amongst kindred of equal degrees, with- out distinction of whole blood and half blood, or of consanguinity by the father's or mother's side.

The descent of real estates, of houses, that is, and land, having been settled in more remote and in ruder times, is less reasona- ble. There never can be much to complain of in a rule which every person may avoid, by so easy a provision as that of mak- ing his will : otherwise, our law in this respect is chargeable Tvitb some flagrant absurdities ; such as, that an estate shall in no wise go to the brother or sister of the half blood, though it came to the deceased from the common parent ; that it shall go to the remotest relation the intestate has in the world, rather than to his own father or mother ; or even be forfeited for want of an heir, though both parents survive ; that the most distant paternal relation shall be preferred to an uncle, or own cousin, by the mother's side, notwithstanding the estate was purchased and ac- quired by the intestate himself.

Land not being so divisible as money, may be a reason for iuaking a difference in the course of inheritance ; but there ought to be no difference but what is founded upon that reason. The Soman law made none.

BOOK III.

PART II.

0F RELATIVE DUTIES WHICH ARE INDETERMINATE.

CHAPTER I.

CHARITY.

I USE the term Charity neither in the common sense of bounty to the poor, nor in St. Paul's sense of benevolence to all man- kind ; but I apply it at present, in a sense more commodious to my purpose, to signify tke promoting the happiness of our inferiors.

Charity, in this sense, I take to be the principal province of virtue and religion ; for, whilst worldly prudence will direct our behaviour towards our superiors, and politeness towards our equals, there is little beside the consideration of duty, or an ha- bitual humanity which comes into the place of consideration tr> produce a proper conduct towards those who are beneath us, and dependent upon us.

There are three principal methods of promoting the happiness •four inferiors : —

1. By the treatment of our domestics and dependants.

2. By professional assistance.

3. By pecuniary bounty.

152 CHARITY.

CHAPTER ir.

CHARITY.

THE TREATMEjYT OF OUR DOMESTICS AXD DEPENDANTS.

A PARTY of friends setting out together upon a journey, ^ soon find it to be the best for all sides, that while tliey are upon f the road, one of tho company should wait upon the rest ; another ride forward to seek out lodging and ontertaininont ; a third carry the portmanteau ; a fourth take charge of the horses ; a fifth bear the purse, conduct and direct the route ; not forgetting, however, that as they were equal and independent when they set out, so they are all to return to a level again at their jour- ney's end. The same regard and respect ; the same forbear- ance, lenity, and tcnderuess in using their service ; the same mildness in delivering commands ; the same study to make their journey comfortable and agreeable to them, which he whose lot it was to direct the rest, would in common decency think himself bound to observe towards them, ought we to show to those, who, in the casting of the parts of human society, happen to be placed within our power, or to depend upon us.

Another reflection of a like tendency with the former is, that our obligation to them is much greater than theirs to us. It is a mistake to suppose, that the rich man maintains his servants, ■ tradesmen, tenants^ and labourers ; the t'-uth is, they maintain him. It is their industry which supplies his table, furnishes his Avardrobe, builds his houses, adorns his equipage, provides his amusements. It is not his estate, but the labour employed upon it, that pays his rent. All that he does, is to distribute what others produce ; which is the least part of the business.

Nor do I perceive any foundation for an opinion, which is oftery liandcd round in genteel company, that good usage is thrown

SLAVERY. 163

atvay upon low and ordinary minds ; that they are insensible of kindness, and incapable of gratitude. If by " low and ordinary '* minds" are mcnnt the minds of men in low and ordinary sta- tions, they seem to be affected by benefits in the same way that all others are, and to be no less ready to requite them ; and it Would be a very unaccountable law of nature if it were otherwise.

Whatever uneasiness we occasion to our domestics, which nei- ther promotes our service, nor ansjvers the just ends of punish- ment, is manifestly wrong ; were it only upon the general prin- ciple of diminishing the sum of human happiness.

By which rule we are forbidden,

1. To enjoin unnecessary labour or confinement, from the tnere love and wantonness of domination.

2. To insult them by harsh, scornful, or opprobrious language.

3. To refuse them any harmless pleasures.

And, by the same principle, are also forbidden causeless or immoderate anger, habitual peevishness, and groundless suspi' cion.

CHAPTER IIL

SLAVERY.

THE prohibitions of the last chapter extend to the treatment of slaves, being founded upon a principle independent of thecon- tract between masters and servants.

I define slavery to be " an obligation to labour for the benefit " of the master, without the contract or consent of the servant."

This obligation may arise, consistently wilh the law of nature, irom three causes : —

1. From crimes.

2, From captivity. ^. From debt.

20

j.j^ SLAVERY.

In the first case, the continuance of the slavery, as of any other punishment, ouglit to be proportioned to the crime ; in the second and third cases, it ouyht to cease, as soon as tlie demand of the injured nation, or private creditor, is satisfied.

The slave-trade upon the coast of Africa is not excused by these principles. When slaves are in that country brought to market, no questions, I believe, are asked about the origin or justice of the vender's title. It may be presumed, therefore, that this title is not always, if it be ever, founded in any of the causes above asssigned.

But defect of right in the ili-st purchase is the least crime with which this traffic is chargeable. The natives are excited to war and mutual depredation, for the sake of supplying their contracts, or furnishing the market with slaves. With this the wickedness begins. The slaves, torn away from parents, wives, children, from their friends and companions, their fields andilocks, their home and country, are transported to the European settlements in America, with no other accommodation on shipboard than what is provided for brutes. This is the second stage of cruelty ; from which the miserable exiles are delivered, only to be placed, and that for life, in subjection to a dominion and system of laws, the most merciless and tyrannical that ever were tolerated upon the face of the earth ; and from all that can be learned by the accounts of people upon thfi,^pot, the inordinate authority which the plantation laws confer upon the slaveholder, is exercised by the English slaveholder, especially, with rigour and brutality.

But necessity is pretended, the name under which all enormi- ties are attempted to be excused. And, after afl, what is the ne- cessity ? It has never been proved tha* the land could not be cultivated there, as it is here, by hired servants. It is said that it could not be cultivated with quite the same conveniency and cheapness, as by the labour of slaves ; by which means, a pound of sugar, which the planter now sells for sixpence, could not be afforded under sixpence-half-penny ; — and this is the juxessity.

SLAVERY. 155

The great revolution which hns taken place in the western world may probably conduce, and who knows but that it was designed to accelerate, the fall of this abominable tyranny ; and now that this contest, and the passions which attend it, are no more, there may succeed, perhaps, a season for reflecting, whe- ther a legislature, which had so long lent its assistance to the support of an institution replete with human misery, was fit to be trusted with an empire the most extensive that ever obtained m any age or quarter of the world.

Slavery was a part of the civil constitution of most countries %vhen Christianity appeared ; yet no passage is to be found m the Christian Scriptures by which it is condemned or prohibited. This is true : for Christianity, soliciting admission into all na- tions of the world, abstained, as behoved \i, from intermeddling with the civil institutions of any. But does it follow, from the silence of Scripture concerning them, that all the civil institutions which Ifoert prevailed were right ? or that the bad should not be exchanged for better ?

Besides this, ihe discharging of slaves from all obligation tc •obey their masters, which is the conse({uence of pronouncing slavery to be unlawful, would have had no better effect, than to let loose one half of mankind upon other. Slaves would have been tempted to embrace a religion which asserted their right to freedom : masters would hardly have been persuaded to consent to claims founded upon such authority ; the most calamitous of all contests, a bellum servile, might probably have ensued, to the reproach, if not the extinction of the Christian nanle.

The truth is, the emancipation of slaves should be gradual, and be carried on by provisions of law, and under the piotectioo of civil government. Christianity can only operate as an alter- native. By the mild diffusion of its light and influence, the minds of men are insensibly prepared to perceive and correct the enormities which folly, or wickedness, or accident, have in- troduced into their public establishments. In this way the Greek and Roman slavery, and since these, the feudal tyranny, ha? de-

156 PROFESSIONAL ASSISTANCE.

clined before it. And we trust, that, as the knowledge and au- thority of the same religion advance in the world, they will ban- ish what remains of this odious institution.

CHAPTER IV.

CHARITY.

PROFESSIOKJiL ASSISTANCE.

THIS kind of beneficence is chiefly to be expected froHi members of the legislature, magistrates, medical, legal, and sa- cerdotal professions.

1. The care of the poor ought to be the principal object of all laws ; for this plain reason, that the rich are able to lake care of themselves.

Much has been, and more might be done, by the laws of this country, towards the relief of the impotent, and the protection and encouragement of the industrious poor. Whoever applies himself to collect observations upon the state and operation of the poor-laws, and to contrive remedies for the imperfections and abuses which he observes, and digests these remedies into acts of parliament, and conducts them, by argument or iiilkicnce, through the two branches of the legislature, or cominunicales his ideas to those who are more likely to carry them into effect, de- serves well of a class of the community so numerous, that their happiness makes no inconsiderable part of the whole. The study and activity thus employed, is charity, in the most merito- rious sense of the word,

2. The care of the poor is entrusted, in the first instance, to overseers and contractors, who have an interest in oppo>ition to that of the poor, inasmuch as whatever they allow them conies in part out of their own pocket. For this reason, the law has

PROFESSIONAL ASSISTANCE. 157

deposited with Justices of the peace a power of superintendence and control ; and the judicious interposition of this power is a most useful exertion of charity, and ofttimes within the ability of those who have no other way of serving their generation. A country gentleman of very moderate education, and who has little to spare from his fortune, by learning so much of the poor-law as is to be found in Dr. Burn's Justice, and furnishing himself with a knowledge of the prices of labour and provision, so as to be able to estimate the exigences of a family, and what is to be expected from their industry, may, in this way, place out the ,one talent committed to him, to great account.

3. Of all private professions, that of medicine puts it in a man's power to do the most good at the least expense. Health, which is precious to all, is to the poor invaluable ; and their complaints, as agues, rheumatisms, &c. arc often such as yield to medicine. And, with respect to the expense, drugs at first hand cost little, and advice nothing, where it is only bestowed upon those who could not afford to pay for it.

4. The rights of the poor are not so important or intricate, as their contentions are violent and ruinous. A lawyer or attorney, of tolerable knowledge in his ju'ofession, has commonly judgment enough to adjust these disputes, with all the effect, and without the expense of a law-suit ; and he may be said to give a poor man twenty pounds, who prevents his throwing it away upon law. A legal man, whether of the profession or not, who, together with a spirit of conciliation, possesses the confidence of his neighbor- hood, will be much resorted to for this purpose, especially since the grea.t increase of costs has produced a general dread of going to law.

Nor is this line of beneficence confined to arbitration. Sea- sonable counsel, coming with the weight which the reputation of ihe adviser gives it, will often keep or extricate (he rash and un- informed out of great difficulties.

i know not a more exalted charity than that which presents a ji.ij!eld against the rapacity or persecution of a tyrant.

158 PECUNIARY BOUNTY.

5. Betwixt argument and authority (I mean that authority •R'hjch flows from voluntary respect, and attends upon sanctity and disinterestedness of character) some things may be done, amongst the lower orders of mankind towards the regulation of their conduct, and the satisfaction of theii' thoughts. This office belongs to the ministers of religion ; or rather, whoever under- takes it becomes a minister of religion. The inferior clergy, who are nearly upon a level with the common sort of their parishion- ers, and who on that account gain an easier admission to their society and confidence, have in this respect more in their power than their superiors : The discreet use of this power constitutes one of the most respectable functions of human nature.

CHAPTER V.

CHARITY. PECUNIARY BOUNTY.

I. The ohligation to bestOii} relief upon the poor.

II. The manner of bestonaing it.

III. The pretences by which men excuse themselves from it.

I. The obligation to bcstorc relief xip on the poor.

THEY who rank pity amongst the original impulses of our nature, rightly contend, that when it prompts us to the relief of human misery, it indicates sufficiently the Divine intention, and our duty. Indeed, the same conclusion is dcducible, frou) the existence of the passion, whatever account be given of its origin. Whether it be an instinct or a habit, it is in fact a property of our nature, which God appointed ; and the final cause for whicb it was appointed is, to afl'ord to the miserable, in the compassion of their fellow-creatures, a remedy for those inequalities and dis-

PECUNIARY BOUNTY. 159

tresses which God foresaw that many must be exposed to under every general rule for the distribution of property.

Beside this, the poor have a claim founded in the law of nature, v\'hich may be thus explained : — AH things were originally com- mon. No one being able to produce a charter from Heaven, had any better title to a particular possession than his next neigh- bour. There were reasons for mankind's agreeing upon a sepa- ration of this common fund ; and God for these reasons is pre- sumed to have ratified it. But this separation was made and Gons?;nted to, upon the expectation and condition thai every one should have left a sufficiency for his subsistence, or the means of procuring it : and as no fixed laws for the regulation of property can be so contrived, as to provide i'or the relief of every case and distress which may arise, these cases and distresses, when their right and share in the common stock was given up or taken from them, were supposed to be left to the voluntary bounty of those who might be acquainted with the exigences of their situa- tion, and in the way of affording assistance. And, therefore, when the partition of property is rigidly maintained against the claims of indigence and distress, it is maintained in oppo-ition to the intention of those who made it, and to his, who is the Su- pi-eme Proprietor of every thing, and who has filled the world with plenteousness, for the sustentation and comfort of all \vhom he sends into it.

The Christian Scriptures are more copious and explicit upon this duty than almost any other. The description which Christ hath left us of the proceedings of the last day, establishes the obligation of bounty beyond controversy : — " When the Son of " man shall come in his glory, and all the holy angels with him, " then shall he sit upon the throne of his glory, and before him " shall be gathered all nations ; and he shall separate them one " from another.-— Then shall the king say unto them on his right '"■ hand, Come, ye blessed of my Father, inherit the kingdom " prepared for you from the foundation of the world : For I was " an hungered, and ye gave me meat : I was thirsty, and ye gave

160 PECUiNIARY BOUNTY.

*' me drink : I was a stranger, and ye took me in : naked, artu " ye clotlied me : I was sick, and ye visited me : I was in prison, " and ye came unto me. — And inasmuch as ye have done it to *' one of the least of these my brethren, ye have done it unto *' me."* It is not necessary to understand this passage as a literal account of what will actually pass on that day. Supposing it only a scenical description of the rules and principles by which the Supreme Arbiter of our destiny will regulate his decisions, it conveys the same lesson to us ; it equally demonstrates of how great value and importance these duties in the sigiit of God'are, and what stress will be laid upon them. The apostles also des- cribe this virtue as propitiating the Divine favour in an eminent degree. And these recommendations have produced their effect. It does not appear that, before the times of Christianity, an in- firmary, hospital, or public charity of any kind, existed in the world : whereas most countries in Christendom have long aboun- ded with these institutions. To which may be added, that a spirit of private liberality seems to flourish amidst the decay of many other virtues : not to mention the legal provision for the poor, which obtains in this country, and which was unknown and unthought of by the most polished nations of antiquity.

St. Paul adds upon the subject an excellent direction, and which is practicable by all who have any thing to give : — " Upon " the first day of the week (or any other stated time) let every " one of you lay by in store, as God hath prospered him." By which I understand St. Paul to reconmiend what is the very thing ^vanting with most men, the being charitable upon a plan ; that is, from a deliberate comparison of our fortunes with the reason- able expenses and expectations of our families, to compute what we can spare, and lay by so much for charitable purposes iir some mode or other. The mode will be a consideration after- wards.

The effect which Christianity produced upon some of its first converts, was such as might be looked for from a divine religion

* Matthew, XXV. 31.

'*5*-f.

• PECUNIARY BOUiNTY. 161

corning with full force and miraculous evidence upon the con- sciences of mankind. It overwhelmed all worldly considerations in the expectation of a more innportant existence : — " And the " multitude of them that believed, were of one heart and of one '"soul ; neither said any of them that aught of the things which " he possessed was his own ; but they had all things in common. " — Neither was there any among them that lacked ; for as many *' as were possessors of lands or houses, sold them, and brought " the prices of the things that were sold, and laid them down " at the Apostles' feet, and distribution was made unto every *' man according as he had need.'' Acts, iv. 32.

Nevertheless, this community of goods, however it manifested the sincere zeal of the primitive Christians, is no precedent for our imitation. It was confined to the Church at Jerusalem ; con- tinued not long there ; was never enjoined upon any ; (Acts, v. 4. ;) and, although it might suit with the particular circumstances of a small and select society, is altogether impracticable in a large and mixed community.

The conduct of the Apostles upon the occasion deserves to be noticed. Tiieir followers laid down their fortunes at their feet ; but so far were they from taking advantage of this unlimited con- fidence, to enrich themselves, or to establish their authority, that they soon after got rid of this business, as inconsistent with the main object of their mission, and transferred the custody and management of the public fund to deacons elected to that office by the people at large. Acts, vi.

II. The manner of bestowing bounty ; — or the diff'erent kinds of charity.

Every question between the different kinds of charity, sup- poses the sum bestowed to be the same.

There are three kinds of charity which prefer a claim to at- tention.

The first, and in my judgment one of the best, is, to give stated and considerable sums, by way of pension or annuity, to individ- uals or families, with whose behaviour and distress we ourselves 21

162 PECUNIARY BOUNTY.

are acquainted. When I speak of considerable sums, I mean onlj that fivo |iouiids, or any oilier sum, given at once, or divided amongst five or fewer families, will do more good than the same sum distributed amongst a greater number in shillings or half- crowns ; and that, because it is more likely to be properly ap- plied by the persons who receive it. A poor fellow, who can find no better use for a shilling than to drink his benefactor's health, and purchase half an hour's recreation for himself, would hardly break into a guinea for any such purpose, or be so im- provident as not to lay it by for an occasion of importance, for his rent, his clothing, fuel, or stock of winter's provision. It is a still greater recommendation of this kind of charity, that pen- sions and annuities, which are paid regularly, and can be ex- pected at the time, are the only way by which we can prevent one part of a poor man's suCferings, — the dread of want.

2, But as this kind of charity supposes that proper objects ©f such expensive benefactions fall within our private knowledge and observation, which does not happen to all, a second method of doing good, which is in every one's power who has the money to spare, is by subscription to public charities. Public charities admit of this argument in their favour, that your money goes further towards attaining the end for which it is given, than it can do by any private and separate beneficence. A guinea, for example, contributed to an infirmary, becomes the means of pro- viding one patient at least with a phj'sician, surgeon, apothecary, with medicine, diet, lodging, and suitable attendance ; which is not the tenth part of what the same assistance, if it could be pro- cured at all, would cost to a sick person or family in any other situation.

3. The last, and, compared with the former, the lowest ex- ertion of benevolence, is in the relief of beggars. Nevertheless. I by no means approve the indiscriminate rejection of all who implore our alms in this way. Some may perish by such a con- duct. Men are sometimes overtaken by distress, for which all other relief would come too late. Beside which, resolutions of

PECUNIARY BOUNTY. 163

this kind compel us to offer such violence to our humanity, as may go near, in a little while, to suffocate the principle itself, which is a very serious consideration. A good man, if he do not surrender himself to his feelings without reserve, will at least lend an ear to importunities which come accompanied with out- ward attestations of distress ; and after a patient hearing of the complaint, will direct himself by the circumstances and credi- bility of the account that he receives.

There are other species of charity well contrived to make the money expended go far ; such as keeping down the price of fuel -or provision, in case of a monopoly or temporary scarcity, by purchasing the articles at the best market, and retailing them at prime cost, or at a small loss ; or the adding a bounty to par- ticular species of labour v.hen the price is accidentally depressed.

The proprietors of large estates have it in their power to faci- litate the maintenance, and thereby encourage the establishment of families (which is one .of the noblest purposes to which the rich at2d great can convert their endeavours,) by building cotta- ges, splitting farms, erecting manufactures, cultivating wastes, embanking the sea, draining marshes, and other expedients, which the situation of each estate points out. If the profits of these undertakings do not re[)ay the expense, let the authors of them place the difference to the account of charity. It is true of almost all such projects, that the public is a gainer by them, whatever the owner be. And where the loss can be spared, this consideration is sufficient.

It is become a question of some importance, under what cir- cumstances wx)rks of charity ought to be done in private, and v/hen they may be made public without detracting from the merit of the action, if, indeed, they ever may ; the Author of our religion having delivered a rule upon this suisject which seems to enjoin universal secrecy : — " When thou doest alms, let not " thy left hand know what thy right hand doeth, that thy alms " may be in secret ; and thy Father which seeth in secret, hira- *' self sJ-iali reward thee openly." Matt. vi. 3, 4. From tke

164 PECUNIARY BOUNTY.

preamble to this prohibition 1 think it, l)o\vever, plain, thst our Saviour's sole design was to forbid ostentation, and all publi.shing of good works which proceeds from that motive : — " Take heed " that ye do not your alms before men, to be seen of them ; other- " wise ye have no reward of your Father which is in heaven : " Therefore, when thou doest thine alms, da not sound a trumpet *' before thee, as the hypocrites do, in the synagogues and in the " streets, that they may have glory of men. Verily I say unto " thee, they have their reward," ver. 1, 2. There are motives for the doing our alms in public beside those of ostentation, with which, therefore, our Saviour's rule has no concern ; such as to testify our approbation of some particular species of charity, and to recomend it to others ; to take off the prejudice which the want, or, which is the same thing, the suppression of our name in the list of contributors might excite against the charity, or against ourselves. And, so long as these motives are free from any mixture of vanity, they are in no danger of invading our Saviour's prohibition : they rather seem to comply with another direction which he has left us : " Let your light so shine before " men, that they may see your good works, and glorify your '' Father which is in heaven." If it be necessary to propose a precise distinction upon the subject, I can think of none better than the following : When our bounty is beyond our fortune or station, that is, when it is more than could be expected from us, our charity should be j)rivate, if privacy be practicable ; when it is not more than may be expected, it may be public : for we cannot hope to influence others to the imitation of extraordinary generosity, and therefore want, in the former case, the only jus- tifiable reason for making it public.

Having thus described several different exertions of charity, it may not be improper to take notice of a species of, liberality, Tvhich is not charity, in any sense of the word : I mean the giv- ing of entertainments or liquor, for the sake of popularity ; or the rewarding, treating, and maintaining, the companions of our diversion*, 3« hunters, shootersj fishers, and the like. I do not

PECUNIARY BOUNTY. 165

say that this is criminal ; I only say that it is not charity ; and that we are not to suppose, because we give, and give to the poor, that it will stand in the place, or supercede the obliga- tion, of more meritorious and disinterested bounty.

III. The pretences by which men excuse omr selves from giving to the poor.

1. " That they have nothing to spare," i. e. nothing for which they have not some other use ; nothing which their plan of ex- pense, together with the savings they have resolved to lay by, will not exhaust : never reflecting whether it be in their power, or that it is their duty to retrench their expenses, and contract their plan, " that they may have to give to them that need ;" or, rather, that this ought to have been part of their plan origi- nally.

2. " That they have families of their o\yn, ai>d that charity " begins at home." The extent of this plea will be consider red, when we come to explain the duty of parents.

3. " That charity does not consist in giving money, but in be- ^' nevolence, philanthropy, love to all mankind, goodness of *' heart," &c. Hear St James : " If a brother or sister be na- " ked, and destitute of daily food, and one of you say unto them, " Depart in peace ; be ye warmed and filled ; notwithstanding " ye give them not those things zvhich are needful to the body t f'what doth it profit ?" James, ii. 16, 16.

4. " That giving to the poor is !)ot mentioned in St. Paul's ^' description of charity, in the thirteenth chapter of his First " Epistle to the Corinthians." This is not a description of cha^ rity, but of good-nature ; and it is not necessary that every duty be mentioned in every place.

5. ^' That they pay the poor-rales." They might as well allege that they j)ay their debts : for, the poor have the same right to that portion of a man's properly which the laws assign them, that the man Liniself has to the remainder.

6. " That they employ many poor persons :" — for their own siikej net the poor's ; — otherwise it is a good plea.

liiv

PECUNIARY BOUNTY.

7. " Thai the poor do not suffer so much os \tc imagine ; that " education and habit have leconciled tlieni to tlie evils of their " condition, and make them easy under it." Habit can never reconcile human nature to the extremities of cold, hunger, and •thirst, any more than it can reconcile the hand to the touch of a red hot iron : besides, the question is not, how unhappy any one is, but how much more happy we can make him.

8. " That these people, give them what you will, williiever " thank you, or think of you for it." In the first place, this is not true : in the second place, it was not for the sake of their thanks tliat you relieved them.

9. " That we are so liable to be imposed upon." If a due inquiry be made, our motive and merit is the same : beside that, the distress is generally real, whatever has been the cause of it.

10. " That they should apply to their parishes." This is not always practicable : to which we may add, that there are many requisites to a comfortable subsistence, which parish relief does not always supply ; and that there are some who would suffer almost as much from receiving parish relief as by the want of it ; and, lastly, that there are many modes of charity to which this answer does not relate at all.

11. " That giving money encourages idleness and vagrancy." This is true only of injudicious and indiscriminate generosiiy.

12. " That we have too many objects of charity at home, to " bestow any thing upon strangers ; or, that there are other " charities, which are mote useful, or stand in greater need." The value of this excuse depends entirely upon the fact, whe- ther we actually relieve those neighboring objects, and contribute to those other charities.

Beside all these excuses, pride, or prudery, or delicacy, or jove of ease, keep one half of the world out of the way of obser- ving what the other half suffer.

RESENTMENT.— ANGER, 167

CHAPTER VI.

RESENTMENT.

RESENTMENT may be d^(&tiftg^«sfeed into a7iger and re- venge.

By anger, I mean the pain we suffer upon the receipt of an injury or affront, with the usual effects of that pain upon ourselves.

By revenge, the inflicting of pain upon the person who has in- jured or offended us, further than the just ends of punishment or reparation require.

Anger prompts to revenge ; but it is possible to suspend the effect, when we cannot altogether quell the principle. We are bound also to endeavour to qualify and correct the principle it- self. So that our duty requires two different applications of the mind ; and for that reason, anger and revenge should be consid- ered separately.

CHAPTER Vn.

ANGER.

" BE ye angry, and sin not ;*' therefore all anger is not sin- ful : I suppose, because some degree of it, and upon some occa- sions, is inevitable.

It becomes sinful, or contradicts, however, the rule of Scrip- ture, when it is conceived upon slight and inadequate provoca- cations, and when it continues long.

1. When it is conceived upon slight provocations : for, " cha- " rity suffereth long, is not easily provoked." — " Let every man " be slow to anger." Peace, long-suffering, gentleness, meek- ness, are enumerated among the fruits of the spirit. Gal. v. 22. and ct)mpQse the true Christian temper, as to this article of dutr.

168 ANGER.

2. When it continues long : for, " let not the sun go down " upon your wrath."

These precepts, and all reasoning indeed upon the subject, suppose the passion of anger to be within our power : and this power consists not so much in any faculty we have of appeasing our wrath at the time, (for, we are passive under the smart which an injury or affront occasions, and all we can then do is, to pre- vent its breaking out into action,) as in so mollifying our minds by habits of just reflection, as to be less irritated by impressions of injury, and to be sooner pacified.

Reflections proper for this purpose, and which may be called the sedatives of anger, are the following : the possibility of mis- taking the motives from which the conduct that ofiends us pro- ceeded ; how often ovr off'ences have been the eSect of inadver- tency, when they were mistaken for malice ; the inducemertt which prompted our adversary to act as he did, and how jiow- erfuUy the same inducement has, at one time or other, operated upon ourselves ; that he is suffering perhaps under a contrition, which he is ashamed or wants opportunity to confess ; and how ungenerous it is to triumph by coldness or in?ult over a spirit al- ready humbled in secret ; that the returns of kindness are sweet, and that there is neither honour, nor virtue, nor use in resisting them : — for, some persons think themselves bound to cherish and keep alive their indignation, when they find it dying away of itself. We may remember that others have their passions, their prejudices, their favourite aims, their fears, their cautions, their interests, their sudden impulses, their varieties of apprehension, as well as we : We may recollect what hath sometimes passed in our own minds, when we have got on the wrong side of a quar- rel, and imagine the same to be passing in our adversary's mind now ; when we became sensible of our misbehaviour, what pal- liations we perceived in it, and expected others to perceive ; how we were affected by the kindness, and felt the superiority of a generous reception and ready forgiveness ; how persecution revived our spirits with our enmity, and seemed to justify the

REVENGE. 1G9

conduct in ourselves which wc before blamed. Add to this, the indecency of extravagant anger ; how it renders us, while it lasts, the scorn and sport of all about us, of Avhich it leaves us, when it ceases, sensible and ashamed ; the inconveniences, and irretrievable misconduct into which our irascibility has sometimes betrayed us ; the friendships it has lost us ; the distresses and embarrassments in which we have been involved by it ; and the sore repentance Avhich, on one account or other, it always costs us.

But the reflection calculated above all others to allay that haughtiness of temper which is ever finding out provocations, and which renders anger so impetuous, is that which the Gospel pro- poses ; namely, that we ourselves are, or shortly shall be, sup- pliants for mercy and pardon at the judgment-seat of God. Im- agine our secret sins all disclosed and brought to light ; imagine us thus humbled and exposed ; trembling under the hand of God ; casting ourselves on his compassion ; crying out for mercy ; im- agine such a creature to talk of satisfaction and revenge ; refusing to be entreated, disdaining to forgive ; extreme to mark and to resent what is done amiss : — imagine, I say, this, and you can hardly frame to yourself an instance of more impious and unna- tural arrogance.

The point is, to habituate ourselves to these reflections, till they rise up of their own accord when they are wanted, that is, instantly upon the receipt of an injury or affront, and with such force and colouring, as both to mitigate the paroxysms of our anger at the time, and at length to produce an alteration in the temper and disposition itself. '

CHAPTER VIIL

REVENGE.

ALL pain occasioned to another in consequence of an offence, or injury received from him, further than what is calculated to

22

]70 REVENGE.

procure reparation, or promote the Just ends of punislimcnt, is so miicli revenge.

There can be no difficulty in knowing wlicn we occasion pain to another ; nor much in distinguishing whether we do so with a \iew only to the ends of punishment, or from revenge ; for, in the one case we proceed with rchictance, in the other with plea- sure.

It is h\gh]y probable from the light of nature, that a passion, Tvhich seeks its gratification immediately and expressly in gi* ing pain, is disagreeable to the benevolent will and counsels of the Creator. Other passions and pleasures may, and often do, pro- duce pain to some one : but then pain is not, as it is here, the object of the passion, and the direct cause of the pleasure. This probability is converted into certainty, if we give credit to the authority which dictated the several passages of the Christian Scriptures that condemn revenge, or, what is the same thing, which enjoin forgiveness.

We will set down the principle of these passages ; and en- deavour to collect from tliem, what conduct upon the whole is allowed towards an enemy, and what is forbidden.

"If ye forgive men their trespasses, your heavenly Father " will also forgive you : but if ye forgive not men their trcs- " passess, neither will your Father forgive your trespasses.*' — " And his lord was wroth, and delivered him to the tormentors, " till he sliould pay all that was due unto him : so likewise shall *• my heavenly Father do also unto you, if ye from your heart;? ■■' forgive not every one his brother their trespasses." — " Put on " bowels of mercy, kindness, humbleness of mind, meekness, " long-sufFcring ; forbearing one another, forgiving one another ; " if any man have a quarrel against any, even as Christ forgave " you, so also do ye." — " Be patient towards ail men ; see that " none render evil for evil unto any man." — " Avenge not your- " selves, but rather give place unto wrath : for it is written, " Vengeance is mine ; I will repay, saith the Lord. 'JMierefore, " if thine" enemy hunger, feed him j if he thirst, give him drink :

REVENGE. 17]

^' for, in so doing thou shalt heap coals of fire on his liead. Be '' not overcome of evil, hut overcome evil with good."*

I think it evident, from some of these passages taken sepa- rately, and still more so from all of them together, that revenge, as described in the beginning of this chapter, is forbidden in ev- ery degree, under all forms, and upon any occasion. We are likewise forbidden to refuse to an enemy even the most imperfect right ; " if he hunger, feed him ; if he thirst, give him drink ;"t which are examples of imperfect rights. If one who has olfend- ed us, solicit from us a vote to whicii his qualifications entitle him, we may not refuse it from motives of resentment, or the re- membrance of what we have suffered at his hands. His right, and our obligation which follows the right, is not altered by his enmity to us, or ours to him.

On the other hand, I do not conceive, that these prohibitions xvere intended to interfere with the punishment or prosecution of public offenders. In the eigUteenth chapter of St. Matthew, our Saviour tells his disciples ; " If thy brother who has trespassed " against thee neglect to hear the church, let him be unto thee .t. "" as an heathen man, and a publican." Immediately after this, when St. Peter asked him, " How oft shall my brother sin against *'• me, and I forgive him ? till seven times ?" Christ replied, "I " say not unto thee until seven times, but until seventy times sey— " en ;" that is, as often as he repeats the offence. From these \\\o passages compared together, we are authorized to conclude, that the forgiveness of an enemy is not inconsistent with the pro- ceeding against him as a public offender ; and that the discipline ■established in religious or civil societies, for the restraint or pun- •ishment of criminals, ought to be upheld.

=1- Matt. vi. 14, 15 ; xviii. 34, 35. Col. iii. 12, 13. 1 Tfiess. v. 14, 15- SRom.xii. 19, 20, 21.

t See also Exodus, xxiii. 4. "If thou meet thine enemy's ox, or his " ass, going astray, tliou slialt surely bring it back to him again : if tliou, '• see the a?s of him that liateth thee lying under his burthen, and would^ii "forbear to help him, thou shalt purely help with hinv,"

172 REVENGE.

As the magistrate is not tied down by these prohibitions from the execution of his ofllcc, so neither is the prosecutor : for, the oflice of the prosecutor is as necessary as that of the magistrate. Nor, by parity of reason, are private persons withheld from the correction of vice, when it is in their power to exercise it ; provided they be assured that it is the guilt which provokes them, and not the injury ; and that their motives are pure from all mixture and every particle of that spirit which delights and triumphs in the i)ain and humiliation of an adversary.

Thus, it is no breach of Christian charity to withdraw our company or civility, when the same tends to discountenance any vicious practice. This is one branch of that extrajudicial dis- cipline which supplies the defects and the remissness of law ; and is expressly autliorized by St. Paul : (1 Cor. v. 11 :) "But *' now I have written unto you not to keep company, if any man, *' that is called a brother, be a fornicator, or covetous, or an " idolater, or a railer, or a drunkard, or an extortioner ; with " such an one, no not to eat." The use of this association againjil vice continues to be experienced in one remarkable instance, and might be extended w ith good effect to others. The confed- eracy amongst women of character, to exclude from their society kept-mistresses and prostitutes, contributes more perhaps to dis- courage that condition of life, and prevents greater. numbers from entering into it, than all the considerations of prudence and reli- gion put together.

We arc likewise allowed to practise so much caution as nottp put ourselves in the way of injury, or invite the repetition of it. If a servant or tradesman has cheated us, we are not bound to trust him again : for, this is to encourage him in his dishonest practices, which is doing him much harm.

Where a benefit can be conferred only upon one or few, and the choice of the person upon whom it is confeired is a proper object of favour, we are at liberty to prefer those who have not offended us to those who have ; the contrary being no where re- quired.

DUELLING. 173

Chiisl, wliu, as hath been well demonstrated,* estimated vir- tues by their solid utility, and not by their fashion or popularity, prefers this of the forgiveness of injuries to every other. He en- joins it oftener ; with more earnestness ; under a greater variety of forms ; and with this weighty and peculiar circumstance, that the forgiveness of others is the condition upon which alone we are to expect, or even ask, from God, forgiveness for ourselves. And this preference is justified by the superior importance of the virtue itself. The feuds and animosities in families and be- tween neighbours, which disturb the intercourse of buman life, and collectively compose half the misery of it, have their foun- dation in the want of a forgiving temper ; and can never cease, but by the exercise of this virtue, on one side, or on both.

CHAPTER IX.

DUELLING.

DUELLING as a punishment is absurd ; because it is an equal chance, whether the punishment fall upon the offender, or the person offended. Nor is it much better as a reparation ; it being difficult to explain what the satisfaction consists in, or how it tends to undo the injury, or to afford a compensation for the damage already sustained.

The truth is, it is not considered as either. A law of honour having annexed the imputation of cowardice to patience under an affront, challenges are given and accepted with no other de- sign than to prevent or wipe off this suspicion ; without malice against the adversary, generally without a wish to destroy him, or any concern but to preserve the duellist's ov/n reputation and reception in the world.

* See a View of the Inleraal Eyideace of the Christian Relisrion.

1 74 DUELLING.

The unreasonableness of lliis rule of mniiners is one considera- tion ; the duty and conduct of individuals, nliile such a rule ex- ists, is another.

As to uhich the proper and single question is this ; ^vhethrr a regard tor our own reputation is, or is not, sufiicient to justify the t.aking away the life of another ?

Murder is forbidden ; and wherever human life is deliberately taken away, otherwise than by public authority, there is murder. The value and security of human life make this rule necessary 5 for I do not see what other idea or definition of murder can be admitted, which will not let in so much private violence, as to render society a scene of peril and bloodshed.

If unauthorized laws of honour be allowed to create exceptions to divine prohibitions, there is an end of all morality, as founded in the will of the Deity ; and the obligation of every duty may at one time or other be discharged by the caprice and fluctua- tions of fashion.

" But a sense of shame is so much torture ; and no relief pre- " sents itself otherwise than by an attempt upon the life of our " adversary." What then ? The distress which men suffer by the want of money is oftentimes extreme, and noTesource can be discovered but that of removing a life which stands between the -distressed person and his inheritance. The motive in this case is as urgent, and the means much the same, as in the former : 3''et this case finds no advocates.

Take away the circumstance of the duellist's exposing his own life, and it becomes assassination ; add this circumstance, and what difTerence does it make ? None but this, that fewer per- haps will imitate the example, and human Jife will be somewhat more safe, w'hen it cannot be attacked without equal danger to the aggressor's own. Experience however proves, that there is fortituele enough in most men to undertake this hazard ; and were it otherwise, the defence, at best, would be only that which a highwayman or housebreaker might plead, whose attempt had been so daring and des^israte, that few were likely to lepeat the same.

DUELLING. 175

Iti expostulating with a duellist, 1 all along suppose his adver- sary to fall. Which supposition I am at liberty to make, be- cause, if he have no right to kill his adversay, he has none to attempt it.

In return, I forbear from applying to the case of duelling the Christian i)rinciple of the forgiveness of injuries ; because it is possible to suppose the injury to be forgiven, and the duellist to act entirely from a concern for his OAvn reputation : where this is not tlie case, the guilt of duelling is manifest, and greater.

In this view it seems unnece'^sary to distinguish between hiiu who gives, and him who accepts a challenge : for they incur an equal hazard of destroying life ; and both act upon the same persuasion, that what they do is necessary, in order to recover or preserve the good opinion of the world.

Public opinion is not easily controlled by civil institutions ; for which reason I question, whether any regulations can be con- trived, of sufficient force to suppress or change the rule of hon- our, which stigmatizes all scruples about duelling with the re- proach of cowardice.

The inadequate redress which the law of the land affords for those injuries which chiefly atFect a man in his sensibility and reputation, tempts many to redress themselves. Prosecutions for such offences, hy the trifling damages that are recovered, serve only to make the sufl''ercr more ridiculous. — This ousht to be remedied.

For the army, where the point of honour is cultivated with ex- quisite attention and refinement, I would establish a Court of Honour, with a power of awarding those submissions and ac- knowledgments, which it is generally the object of a challenge to obtain ; and it might grow into a fashion, v."ith persons of rank of all professions, to refer their quarrels to the same tribunal.

Duelling, as the law now stands, can seldom be overtaken by legal punishment. The challenge, appointment, and other pre- vious cirewmstances, which indicate the intention with u'hich the combatants met, being suppressed, nothing appears to a court ok

1 7G LITFGATtON.

justice, but the actual rencounter ; and if a person bo slain when actually fighting with his adversary, the hvw deems his death no- thing more than man-slaughter.

CHAPTER X.

LITIGATION.

" IF it be possible, live peaceably with all men ;" which pre- cept contains an indirect confession that this is not always possible.

The instances* in the fifth chapter of St. Matthew are rather to be understood as proverbial methods of describing the gene- ral duties of forgiveness and benevolence, and of the temper we ought to aim at acquiring, than as directions to be specifically observed ; or of themselves of any great importance to be ob- served. The first of these is, " If thine enemy smite thee on " thy right cheek, turn to him the other also :" j-et, when one of the officers struck Jesus with the palm of his hand, we find Jesus rebuking him for the outrage with becoming indignation ; " If I have spoken evil, bear witness of the evil ; but if well, why " smitest thou me ?" John, xviii. 22. It may be observed, like- wise, that all the examples are drawn from instances of small and tolerable injuries. A rule which forbade all opposition to injury, or defence against it, could have no other etVect, than to put the good in subjection to the bad, and deliver one half of mankind to the depredation of tiie other half; which must be the case, so long as some considered themselves as bound by such a rule, whilst others despised it. St. Paul, though no one inculcated forgiveness and forbearance with a deepersen.se of the value and

* " Whosoever shall smite thee on thy right cheek, turn to him the " other also : and if any man will sue thee at the law, and take away thy " coat, let him have thy cloak also : and whosoever shall compel thee to " go a mile, go with him twain."

I

LITIGATION. ~ 177

©bligation of these virtues, did not interpret either of them to re- '{uire an unresisting submission to every coiitumelj, or a neglect of the means of safety and self-defence. He took refuge in the laws of his country, and in the privileges of a Roman citizen, from the conspiracy of the Jews, Acts, xx.v. 11 ; and from the clandestine violence of the chief, captain. Acts, xxii. 25. And yet this is the same Apostle who reproved the litigousness of his Corintliian converts v.'ith so much severity. " Now, therefore, '" there is utterly a fault among you, because ye go to law one " with another. Why do ye not rather take wrong ? .why do yc " not rather suffer yourselves to be defrauded ?"

On the one hand, therefore, Christianity exclude^ all vindic- tive motives, and all frivolous causes of prosecution ; so that where the injury is small, where no good purpose of public ex- ample is answered, where forbearance is not likely to invite a repetition of the injury, or where the expense of an action be- comes a punishment too severe for the oflxince, there the Chris- tian is vvithholden by the authority of liis religion irom going to law.

On the other hand, a law-suit is inconsistent with no rule of the Gospel, when it is instituted,

1. For the establishing of some important right.

2. For the procuring a compensation for some considerable damage.

3. For the preventing of future injury.

But, since it is supposed to be undertaken simply with a view to the ends of justice and safety, the prosecutor of the action is bound to confine himself to the cheapest process that will accom- plish these ends, as well as to consent to any peaceable expedi- ent for the same purpose ; as a reference, in which the arbitra- tors can do, what the law cannot, divide the damage, when the fault is mutual ; or a compounding of the dispute, by accepting a compensation in the gross, without entering into articles and items, which it is often very difficult to adjust separately.

178 LITIGATION.

As to the rest, the duty of the contending parties may be ex- pressed in the following directions :

Not to prolong a suit by appeals against your own conviction.

Not to undertake or defend a suit against a poor adversary, or render it more dilatory or expensive than necessary, with the hope of intimidating or wearying him out by the expense.

Not to influence evidence by authority or expectation.

Nor to stifle any in your possession, although it make against you.

Hitherto we have treated of civil actions. In criminal prose- cutions, the private injury should be forgotten, and the prosecu- tor proceed with the same temper, and upon the same motives, as the magistrate ; the one being a necessary minister of justice as well as the other, and both bound to direct their conduct by a dispassionate care of the public welfare.

In whatever degree the punishment of an offender is conducive, or his escape dangerous, to the interest of the community, in the same degree is the party against whom the crime was committed bound to prosecute, because such prosecutions must in their na- ture originate from the sufferer.

Therefore, great public crimes, as robberies, forgeries, ^'c, ought not to be spared from an apprehension of trouble or ex- pense in carrying on the prosecution, or from false shame or mis- placed compassion.

There are many offences, such as nuisances, neglect of public roads, forestalling, engrossing, smuggling, Sabbath-breaking, pro- faneness, drunkenness, prostitution, the keeping of lewd or dis- orderly houses, the writing, publishing, or exposing to sale lasci- vious books or prints, with some others, the prosecution of which, being of equal concern to the whole neighborhood, cannot be charged as a peculiar obligation upon any.

Nevertheless, there is great merit in the person wh(* undertakes s\ich prosecutions upon proper motives ; which aniounts to the same thing.

The character of an ivformer is in this country undeservedly odious. But where any public advantage is likely to be attained

GRATITUDE. 17^

by informations, or other activity in promoting the execution of the laws, a good man will despise a prejudice founded in no just reason, or will acquit himself of the impuation of interested de- signs by giving away his share of the penalty.

On the other hand, prosecutions for the sake of the reward, or for the gratification of private enmity, where the offence produces no public mischief, or where it arises from ignorance or inadver- tency, are reprobated under the general descri])tion of applying u rule of law to a purpose for which it was not intended. Under which description may be ranked an officious revival of the laws against Popish priests and dissenting teachers.

CHAPTER XL

GRATITUDE.

EXAMPLES of ingratitude check and discourage voluntaiy 'beneficence ; and in this the mischief of ingratitude consists. Nor is the mischief small ; for after all is done that can be done, by prescribing general rules of justice, and enforcing the obser- vation of them by penalties or compulsion, much must be left to those offices of kindness which men remain at liberty to exert or withhold. Now, not only the choice of the objects, but the quantity, and even the existence, of this sort of kindness in the world, depends in a great measure unon the return which it re- ceives ; and this is a consideration of public importance.

A second reason for cultivating a grateful temper in ourselves, is the following : the same principle which is touched with the kindness of a human benefactor, is capable of being affected by the divine goodness, and of becoming, under the influence of that affection, a source of the purest and most exalted virtue. The •iovc of God is the sublimest gratitude. It is a mistake, there- iore, to imagine, that this virtue is omitted in the Christian

180 SLANDER.

Scriptures ; for every precept which commands us, " to love " God, because he first loved us," presu|)poses the principle of gratitude, and directs it to its proper object.

It is impossible to particularize the several expressions of grat- itude, which vary with the character and situation of the bene- factor, and with the opportunities of the person obliged ; for this variety admits of no bounds.

It may be observed, however, that gratitude can never oblige a man to do what is wrong, and what by consequence he is pre- %'iously obliged not to do. It is no ingratitude to refuse to do, what we cannot reconcile to any apprehensions of our duty ; but it is ingratitude and hypocrisy .together, to pretend this reason, when it is not the real one ; and,the frequency of such pretences has brought this apology for non-compliance with the will of a benefactor into unmerited disgrace.

It has long been accounted a violation of delicacy and gene- rosity to upbraid men with the favours they have received ; but it argues a total destitution of both these qualities, as well as of moral probity, to take advantage of that ascendency, which the conferring of benefits justly creates, to draw or drive those whom wc have obliged into mean or dishonest compliances.

CHAPTER XII.

SLANDER.

.SPEAKING is acting, both in philosophical strictness, anil a.« to all moral purposes : for, if the mischief and motive of our con- duct be the same, tlie means we use make no difference.

And this is in effect what our Saviour declares, Matt. xii. 37. — " By thy words thou shalt be justified, and by thy words thou shalt be condemned :" By thy words, as well, that is as by thy actions ; the one shall be taken into the account as well a.s

SLANDER. 181

?4ie other, lor they both possess the same property of volunta- rily producing good or evil.

Slander may be distinguished into two kinds, malicious slander, and inconsiderate slander.

Malicious slander, is the relating of either truth or falsehood, with a conscious purpose of creating misery.

I acknowledge that the truth or falsehood of what is related, varies the degree of guilt considerably ; and that slander, in the ordinary acceptation of the term, signifies the circulation of mis- chievous falsehoods ; but truth may be made instrumental to the success of malicious designs as well as falsehood ; and if the end be bad, the means cannot be innocent.

I think the idea of slander ought to be confined to the produc- tion of gratuitous mischief. When we have an end or interest of our own to serve, if we attempt to compass it by falsehood, it is fraud; if by a publication of the truth, it is not, without some additional circumstance of breach of promise, betraying of con- fidence, or the like, to be deemed criminal.

Sometimes the pain is intended for the person to whom we are speaking ; at other times, an enmity is to be gratified by the prejudice or disquiet of a third person. To infuse suspicions, to kindle or continue disputes, to avert the favour and esteem of benefactors from their dependants, to render some one we dislike contemptible or obnoxious in the public opinion, are all offices of slander ; of which the guilt must be measured by the intensi- ty and extent of the misery produced.

The disguises under which slander is conveyed, whether in a whisper, with injunctions of secrecy, by way of caution, or with affected reluctance, are all so many aggravations of the offence, as they manifest a more concerted and deliberate design.

Inconsiderate slander is a different offence, aithough the same mischief actually follow, and although it niighf have been fore- seen. The not being conscious of that mischievous design, which we have hitherto attributed to the slanderer, makes the 4ifterence.

182 SLANDER.

The guilt here consists in the want of that regard to the com- sequences of our conduct, which a just affection for human hap- piness, and concern for our duty, would not have failed to have produced in us. And it is no answer to this crimination to say, that we entertained no evil design. A servant may be a very bad servant, and yet seldom or never design to act in opposition to his master's interest or will ; and his master may justly pun- ish such servant for a thoughtlessness and neglect nearly as pre- judicial as deliberate disobedience. 1 accuse you not, he may say, of an express intention to hurt me ; but had not the fear of my displeasure, the care of my interest, and indeed all the qual- ities which constitute the merit of a good servant, been wanting in you, they would not only have excluc^ed every direct purpose of giving mc uneasiness, but have been so far present to your thoughts, as to have checked that unguarded licentiousness, by which I have suffered so much, and inspired you in its place with an habitual solicitude about the effects and tendency of what you did or said. This very much resembles the case of all sins of inconsideration ; and, amongst the formemost of these, that of inconsiderate slander.

Information communicated for the real purpose of warning, or cautioning, is not slander.

Indiscriminate praise is the opposite of slander, but it is the opposite extreme ; and, however it may affect to be thought ex- cess of candour, is commonly the production of a frivolous under- standing, and sometimes of a settled contempt of all moral dis- tinctions.

BOOK III.

PART III.

OF RELATIVE DUTIES WHICH RESULT FROM THE CON- STITUTION OF THE SEXES.

THE constitution of the sexes is the foundation of marriage.

Collateral to the subject of marriage, are fornication, seduc- tion, adultery, incest, polygamy, divorce.

Consequential to marriage, is the relation and reciprocal duty of parent and child.

We will treat of these subjects in the following order : Jirst, Of the public use of marriage institutions ; secondly. Of the sub- jects collateral to marriage, in the order in which we have here proposed them ; thirdly. Of marriage itself ; and, lastly, Of the relation and reciprocal duties of parents and children.

CHAPTER I.

OF THE PUBLIC USE OF MARRIAGE INSTITUTIONS.

THE public use of marriage institutions consists in their pro- moting 4j(P;he following beneficial effects :

1. The private comfort of individuals, especially of the female Sex. It may be true, that all are not interested in this reason ; nevertheless, it is a reason to all for abstaining from any conduct ^hich tends in its general consequence to obstruct marriage : for.

184 FORNICATION.

whatever promotes the happiness of the majority, is binding up- on the whole.

2. The production of the greatest number of healthy children, their better education, and the making of due provision for their settlement in life.

3. The peace of human society, in cutting off a principal source of contention, by assigning one , pr-jiwfft' women to one man, and protecting his exclusive right by sanctions of morality and law.

4. The better government of society, by distributing the com- munity into separate families, and appointing over each the au- thority of a master of a family, which has m<ore actual influence than all civil authority put together.

5^ The same end, in the additional security which the state receives for the good behaviour of its citizens, from the solicitude they feel for the welfare of their children, and from their being confined to permanent habitations.

6. The encouragement of industry.

Some ancient nations appear to have been more sensible of the importance of marriage institutions than we are. The Spartans obliged their citizens to marry by penalties, and the Romans encouraged theirs by the jus trium liberorum. A man who had no child, was entitled by the Roman law only to one half of any legacy that should be left him, that is, at the most, could only receive one half of the testator's fortune.

CHAPTER II.

FORNICATION. ^^

THE first and great mischief, and by consequence the guilt, of promiscuous concubinage, consists in its tendency to diminish marriages, and thereby to defeat the several'public and beneficial purposes enumerated in the preceding chapter.

I

FORNICATION, 185

Promiscuous concubinage discourages marriage, by abating the chief temptation to it. The male/ part of the species will not undertake the incumbrance, expense, and restraint of married life, if they can gratify their passions at a cheaper price ; and they will undertake any thing rather than not gratify them.

The reader will learn to comprehend the magnitude ot this mischief, by attending to the importance and variety of the uses to which marriage is subservient ; and by recollecting withal, that the malignity and moral quality of each crime is not to be estimated by the particular effect of one offence, or of one per- son's offending, but by the general tendency and consequence of crimes of the same nature. The libertine may not be conscious that these irregularities hinder his own marriage,. from which he is deterred, he may allege, by many different considerations ; much less does he perceive how his indulgences can hinder other men from marrying : but what will he say would be the conse(iuence, if the same licentiousness were universal ? or what should hinder its becoming universal, if it be innocent or allowable in hiin.

2. Fornication supposes prostitution ; and prostitution brings and leaves the victims of it to almost certain misery. It is no small quantity of misery in the aggregate, which, between want, disease, and insult, is suffered by those outcasts of human socie- ty, who infest populous cities ; the whole of which is a general consequence of fornication, and to the increase and continuance of which, every act and instance of tornication contributes.

3. Fornication* produces habits of ungovernable lewdness, which introduce the more aggravated crimes of seduction, adul- leiy, violation, &c. Likewise, however it be accounted for, the criminal commerce of the sexes corrupts and depraves the mind and moral character more tlian any single species of vice what- soever. That ready perception of guilt, that prompt and deci-

* Of this passion it has been-truly said, " that irregularity has no limits ; "' thai one excess draws on another ; that the most easy, therefore, as well "as the most excellent way of being; virtuous, is to be so entirely." — Ogden, Serm. xvi. 24

J 86 FORNICATION.

sive resolution against it, which constitutes a virtuous character, is seldom found in persons addicted to these indulgences. They prepare an easy admission for every sin that seeks it ; are, in low life, usually the first stage in men's progress to the most des- perate villanies ; and in hij^li life, to that lamented dissoluteness of principle, which manifests itself in a profligacy of public con- duct, and a contempt of the obligations of religion and of moral probity. Add to this, that habits of libertinism incapacitate and indispose the mind for all intellectual, moral, and religious plea- sures ; which is a great loss to any man's happiness,

4. Fornication perpetuates a disease, which may be accounted one of the sorest maladies of human nature, and the effects of which are said to visit the constitution of even distant genera- tions.

The passion being natural, proves that it was intended to be gratified ; but under what restrictions, or whether without any. must be collected from diflcrcnt considerations.

The Christian Scriptures condemn fornication absolutely and peremptorily. " Out of the heart," says our Saviour, " proceed '' evil thoughts, murders, adulteries, fornication, thefts, false " witness, blasphemies ; these are the th'iigs which defile a man."' These are Christ's ovvlt•^v(fi•ds ; and one word from him on the subject is final. It may be observed with what society fornica- tion is classed ; with murders, thefts, false witness, blasphemies. I do not mean that these crimes are all equal, because they are all mentioned together ; but it proves that they are all crimes. The Apostles are more full upon this topic. One well known passage in the Epistle to the Hebrews may stand in the place of all others ; because, admitting the authority by which the Apos- tles of Christ spake and wrote, it is decisive : " Marriage and " the bed undefiled, is honourable amongst all men ; but whore- " mongers and adulterers God will judge ;" which was a great deal to say at a time when it was not agreed, even amongst phi- losophers, that fornication was a crime.

The Scriptures give no sar^ tinn to those ar;«t«Mities, which have been since imposed upon the world under the name ol

FORNICATION. I8T

Christ's religion ; as the celibacy of the clergy, the praise of perpetual virginity, the prohihitio concubitus cum gravida uxore ,• but with a just knowledge of and regard to the condition and in- terest of the human species have provided, in the marriage of one man with one woman, an adequate gratification for the pro- pensities of their nature, and have restrained them to tliat grati- fication.

The avowed toleration, and in some countries the licensing, taxing, and regulating of public brothels, has appeared to tjie people an authorizing of fornication ; and has contributed, with other causes, so far to vitiate the public opinion, that there is no practice of which the immorality is so little thought of or ac- knowledged, although there are few, in which it can more plainly be made out. The legislators who have patronized receptacles of prostitution, ought to have foreseen this eftect, as v»-ell as con- sidered, that whatever facilitates fornicouon, diminishes marria- ges. And as to the usual apology for this relaxed discipline, the danger of greater enormities if access to prostitutes were too strictly w^atched and prohibited, it will be time enough to look to that, after the laws and magistrates have done their utmost, The greatest vigilance of both will do no more, than oppose some bounds and some difficulties to this intercourse. And, after alb, these pretended fears are without foundation in experience. The men are in all respects the most virtuous in countries where the women are most chaste.

There is a species of cohabitation, distinguishable, no doubt, from promiscuous concubinage, and which, by reason of its re- semblance to marriage, may be thought to. participate of th<e sanctity and innocence of that estate : I mean the case of kep:. mistresses, under the favourable circumstance of mutual fidelity^ This case I have heard defended by some such apology as tlie following : —

" That the marriage rite being difllerent in ditfereiit countries. " and in the same country amongst^^^difierent sects, and with some " scarce any thing ; and, moreover, not being prescribed ovoyei:

188 FORNICATION.

" mentioned in Sciiplure, can lie accounted of only as of a form " and ceremony of human invention ; that, consequently, if a " man and woman betroth and confine themselves to each other, " their intercourse must be the same, as to all moral purposes, " as if they were legally married ; for the addition or admission " of a mere form and ceremony, can make no diflference in the *' sight of God, or in the actual nature of right and wrong." To all which it may be replied, —

1. If the situation of the parties be the same thing as mar- riage, why do they not marry ?

2. If the man choose to have it in his power to dismiss the wo- man at his pleasure, or to retain her in a slate of humiliation find dependence inconsistent with the rights which marriage would confer upon her, it is not the same thing.

It is not at any rate the same thing to the children.

Again, as to the marriage rite being a mere form, and that also variable, the same may be said of signing and sealing of bonds, wills, deeds of conveyance, and the like, which yet make a great difference in the rights and obligations of |^he parties concerned in them.

And with respect to the rite not being appointed in Scripture ; — the Scriptures forbid fornication, that is, cohabitation without marriage, leaving it to the law of each country to pronounce what is, or what makes, a marriage ; in like manner as they for- bid thefts, that is, the taking away of another's property, leaving it to the municipal law to fix what makes the thing property, or whose it is ; which also, like marriage, depends on arbitrary and mutable forms.

Laying aside the injunctions of Scripture, the plain account of the question seems to be this : It is immoral, because it is per- nicious that men and women should cohabit, without undertaking certain irrevocable obligations, and mutually conferring certain civil rights ; if, therefore, the law has annexed these rights and obligations to certain forms, '■'j that they cannot be secured of undertaken by any other means, which is the case here, (for

SEDUCTION. 189

whatever the parties may promise to each other, nothing but the marriage ceremony can make their promise irrevocable,) it be- comes in the same degree immoral, that men and women should cohabit without the interposition of these forms.

If fornication be criminal, all those incentives which lead to it are accessaries to the crime, as lascivious conversation, whether expressed in obscene, or disguised under modest phrases ; also Avanton songs, pictures, books ; the writing, publishing, and cir- culating of which, whether out of frolic, or for some pitiful profit, is productive of so extensive a mischief from so mean a tempta- tion, that few crimes, within the reach of private wickedness, have more to answer for, or less to plead in their excuse.

Indecent conversation, and by parity of reason all the rest, are forbidden by St, Paul, Eph. iv. 29. '* Let no corrupt commu- " nication proceed out of your mouth ;" and again, Col. iii. 8, '' Put off — filthy communication out of your mouth."

The invitation, or voluntary admission of impure thoughts, or the suffering them to get possession of the imagination, falls with- in the same description, and is condemned by Christ, Matt. v. 28. " Whosoever looketh on a woman to lust after her, hath com- " mitted adultery with her already in his heart." Christ, by thus enjoining a regulation of the thoughts, strikes at the root of the evil.

CHAPTER ni.

SEDUCTION.

THE seducer practises the same stratagems to draw a woman's person into his power, that a swindler does, to get possession of youf goods, or money ; yet the law of honour, which abhors de- frejt, applauds the address of a successful intrigue : so much is

190 SKDUCTION.

lliis capricious rule guided by names, and with such facility docs it accommodate itself to the pleasures and conveiiiency of higher life !

Seduction is seldom accomplished without fraud ; and the fraud is by so much more criminal tlian other frauds, as the in- jury effected by it is greater, continues longer, and less a.dinits of reparation.

This injury is threefold : to the woman, to her lamily, and to the public.

I. The injury to the woman is made up, of the 'i.iiserij .she suffers from shame, of the loss she sustains in her reputation and prospects of marriage, and of the depravation of her moral prin- ciple.

1. This misery must be extreme, if we may judge of it from those barbarous endeavours to conceal their disgrace, to which women, under such circumstances, sometimes have recourse ; compare this barbarity with their passionate fondness for their offspring in other cases. Nothing but an agoisy of mind, the most insupportable, can induce a woman to forget her nature, and the pity which even a stranger would sliow to a helpless and imploring infant. It is true, that all are not urged to this ex- tremity ; but if any are, it affords an indication of how much all suffer from the same cause. What shall we say to the authors of such mischief ?

2. The loss which a woman sustains by the ruin of her repu- tation, almost exceeds computation. Every person's happiness depends in part upon the respect and reception they meet with in the world ; and it is no inconsiderable mortification, even to the firmest tempers, to be rejected from the society of their equals, or received there with neglect and disdain. fJut this is not all, nor the worst. By a rule of life, which it is not easy to blame, and which it is impossible to alter, a woman loses with her chaitity the chance of marying at all, or in any manner equal lo the hopes she had been accustomed to entertain. Now, mar- riage, whatever it be to a man, is that from which every vvoma*

SEDUCTION. 191

expects Iier chief hnppiness. And this is still more true, in low life, of which condition the women are, who are most exposed to solicitations of this sort. Add to this, that where a woman's maintenance depends upon her character, (as it doeSs in a great measure, with those who are to support themselves by service.) little sometitnes is left to the forsaken sufferer, but to starve for want of employment, or to have recourse to prostitution for food and raiment.

3. As a woman collects her virtue into this point, the loss of her chastity is generally the destruction of her moral principle : and this consequence is to be apprehended, whether the criminal intercourse be discovered or not.

II. The injury to the family may be understood by the ap- plication of that infallible rule, " of doing to others what tec "■ rrould that others should do unto us." — Let a father or a brother say, for what consitleration they would suffer this injury iij a daughter or a sister : and whether any, or even a total loss of fortune, would create equal affliction and distress. And when they reflect, upon this, let them distinguish, if they can, between a robbery committed upon their property by fraud or forgery, and the ruin of their happiness bt the treachery of a seducer.

III. The public at large lose the benefit of the woman's ser- vice in her p'0£3V place and destination, as a wife and parent. This, to the -TTiole community, may be little ; but it is often more than all the good which the seducer does to the communi- ty can recompense. Moreover, prostitution is supplied by se- duction ; and in proportion to the danger there is of the woman's Letaliing herself, after her first sacrifice, to a-life of public lewd- ness, the seducer is answerable for the multiplied evils lo which his crime gives birth.

Upon the whole, if we pursue the effects of seduction through the complicated misery which it occnsions ; and if it be right tc estimate crimes by the mischief they knowMngly produce, it will appear somelhistg more than mere invective to assert, that not

192 ADULTERY.

one half of the crimes for which men sufiFer death by the laws of England, are so flagitious as tiiis.* I

J

CHAPTER IV,

ADULTERY.

A NEW sufferer is introduced, the injured husband, who re- ceives a wound in his sensibility and affections, the most painful and incurable that human nature knows. In all other respects, adultery on the part of the man who solicits the chastity of a married woman, includes the crime of seduction, and is attend- ed with the same mischief.

The infidelity of the woman is aggravated by cruelty to her children, who are generally involved in their parent's shame, and always made unhappy by their quarrel.

If it be said that these consequences are chargeable, not so much upon the crime, as the discovery, we answer, first, that the crime could not be discov#red unless it were committed, and that the commission is never secure from discovery ; and second- ly, that if we allow of adulterous connexions, wkcnever they can hope to escape detection, which is the conclusion to which this argument conducts us, we leave the husband no other security for his wife's chastity, than in her want of opportunity or temp- tation ; which would probably deter most men from marrying, or render marriage a state of jealousy and continual alarm to the husband, which would end in the slavery and confinement of the wife.

* Yet the law has provided no punishment for this offence beyond a pecuniary satisfaction to the injured family; and this can only be come at, by one of the quaintest fictions in (he world, by the father's bringing his action against the seducer, for the loss of his daughter's service, dur- ifig her pregnancy and aurturiog;.

ADULTERY. 193

The von% hy which married persons mutually engage their fidelity, is " witnessed before God," and accompanied with circumstances of solemnity and religion, which approach to the nature of an oath. The married offender therefore incurs a crime little short of perjury, and the seduction of a married woman is little less thar? subornation of perjury ; — and this guilt is independent of the discovery.

All behaviour which is designed, or which knovv'ingly tends, to captivate the affection of a married woman, is a barbarous in- trusion upon the peace and virtue of a family, though it fall short of adultery.

The usual and only apology for adultery is the^ prior trans- gression of the other party. There are degrees, no doubt, in this, as in other crimes ; and so far as the bad effects of adulte- ry are anticipated by the conduct of the husband or wife who offends first, the guilt of the second offender is extenuated. But this can never amount to a justification ; unless it could be shown that the obligation of the marriage vow depends upon the con- dition of reciprocal fidelity ; for which construction there ap- pears no foundation, either in expediency, or in the terms of the promise, or in the design of the legislature which prescribed the marriage rite. Moreover, the rule contended for by this plea has a manifest tendency to multiply the offence, but none to re- claim the offender.

Tl)e way of considering the offence of one parly as a provo- cation to the other, and the other as only reiu'iating the injury by repeating the crime, is a childish trifiiqg with words.

" Thou shalt not commit adultery," was an interdict deliver- ed by God himself. By the Jewish law, adultery was capital to both parties in the crime : " Even he that romtnitteth adultc- " ry with his neighbour's wit'e, the adulterer and adulteress slinll shurely be put to death." — Levit. xx. 10. Which passages prove, that the Divine Legislator placed a great difference be- tween adultery and fornication. And with this agree the Chris- tian Scriptures ; for, in almost aU the catalogues they have left 25

194 ADULTERV. '

us of crimt's and crimiivils, tliey eminicrate " loniication, adal- *' toy, whoromongers, adulterers," (Matthew, xv. 19. I Cor. vi. 0. Gal. V. 9. Hcb. xiii. 4 ;) by which mention of holh. they sliou' that tliej'' did not consider tliein as the same ; but that the crime of adultery was, in their njiprehension, distinct from and accu'nulated upon, that of lornication.

The history of the woman taken in adultery, recorded in the eighth chapter of St. John's Gospel, has been thought by some to give countenance to that crime. As Christ told the woman, *' Neither do I condemn thee,'- we must believe, it is said, that he deemed her conduct eithernot criminal, or not a crime, bow- ever, of the heinous nature we represent it to be. A more at- tentive examination of the case, will, I think, convince us, that nothina; can be concluded from it as to Christ's opinion concern ing adultery, either one way or the other. The transaptioii is thus related : " Early in the morning Jesus came again into the *' Temple, and all the people came unto him : and he sat dovvn " and taught them. And the Scribes and Pharisees brought unto " him a woman taken in adultery ; and when they had set her in *' the midst, they say unto him, Master, this woman was taken in " adultery, in the very act ; now Moses, in the law, command- " ed that such should be stoned ; but what sayest thou ? This " they said tempting him, that they might have to accuse him. " But Jesus stooped down, and with his finger wrote on the " ground, as though he heard them not. So when they cpntin- " ued askmg him, he lift up himself, and said unto them. He " that is witlioiit sin amongst you, let him first cast a stone at her : " and agair) he stooped down and wrote on the ground : and the}'" " which heard it, being convicted by their own conscience, went " out one by one, begiiming at the eldest, even unto the last ; " and Jesus was left alone, and the woman standing in the midst. " When Jesus had lift up himself, and saw none but the woman, " he said unto her. Woman, where are those thine accusers ? " hath no man condemned thee ? She said unto him. No man, " Lord. And he said unto her. Neither do I condemn thee: go, " and sin no more."

ADULTERY. 195

" Tliisi they said tempting liiin, that they might have to ac- *' cuse him ;" to draw him, that is, into an exercise of judicial authority, that they might Iiave to accuse him before the Ro- man governor, of usurping or intermeddling with the civil gov- ernment. Tliis was their design ; and Christ's behaviour throughout the whole affair proceeded from a knowledge of this design, and a determination to defeat it. He gives them at fir-sl a cold and sullen reception, well suited to the insidious intention with which they came : " He stooped down, and with his finger *' wrote on the ground, as though he beard them not." "When " they continved asking him," when they teased him to speak, he dismissed them with a rebuke, which the impertinent malice of their errand, as well as the sacred character of matiV'of them^ deserved : " He that is without sin (that is, thrs sin) among you, " let 'him first cast a stone at her." This had i-ts effect. Stung •with .the xeproof, and disappointed of their aim, they stole away one by one, and left Jesus and the woman alone. And then fol- :iows the conversation, which is the part of the narrative most inaterial to our present subject. " Jesus sailh unto her. Woman, ■"where are those thine accusers? hath no man condemned *' thee ? She said, No man. Lord. And Jesus said unto her, " Neither do I condemn thee ; go, and sin no more." Now, when Christ asked the woman, " Hath no man condemned thee ?" lie certainly -spoke, and was understood by the wornan to speakj of a legal a^d judicial condemnation.; otherwise, h.er answer, ■' No man. Lord," was not true. In every other sense of con- demnation, as blame, censure, reproof, private judgment, and the like, many had condemned her ; all those indeed who •brought her to Jesus. If tlien a judicial sentence v>as what Christ meant by candcmtdng in the question, the common use of language requires us to suppose that he meant the sauie in lue reply, " Neither do I condemn thee;" i. e. I pretend to no jn- dicial character or authority over ihce ; it is no olilcc or husi- .ness of mine to pronounce or execute the sentence oi the Inw-

196 ' INCEST.

When Christ adds, " Go, and sin no more," he in efiecl tolls her, that she had sinned alreadj' ; hut as to the degree or tjual- ity of" the sin, or Christ's opinion concerning it, nothing is de- ^ clared, or can he inferred, cither way.

Adulte'j, whicli was punished witii dfvith during the Usurpa- tion, is now regarded by the law of England as only a civil in- jury ; for which the inipertect satisfaction that money can aiTordj may be recovered by the husband.

CHAPTER V.

INCEST.

IN order to preserve chastity in families, and between per- sons of different sexes, brought up and living together in a state of unreserved intimacy, it is necessary by every method pos- sible to inculcate an abliorrence of incestuous conjunctions ; ^vhicii abhorrence can only be u|>held by the absolute reproba- tion of all commerce of the sexes between near relations. Up- on this principle, the marriage, as well as other cohabitations of brothers and sisters, of lineal kindred, and of all who usually live in the same family, may be said to be forbidden by the law of nature.

Restrictions which extend to remoter degrees of kindred than what this reason makes it necessary to prohibit from intermar- riage, are founded in the authority of the positive law which ordains them, and can only be justified by their tendency to diffuse wealth, to connect families, or promote !>ome political advantage.

The Levitical law, which is received in this country, and from which the rule of the Roman law differs very little, pro- hibits marriage between relations, within three degrees of kin- dred ; computing the, genes. itions through thr* common auce-lor,

POLYGAMY. 197

and accounting affinity the same as consanguinity.* The issue, however, of such marriages are not bastardized, unless the pa~ rents be divorced during their lifetime.

The Egyptians are said to have allowed of the marriage of brothers and sisters. Amongst the Athenians, a very singular regulation prevailed ; brothers and sisters of the half blood, if related by the fatiier's side, might marry ; if by the mother's side, they were prohibited from marrying. The same custom also probably obtained in Chaldea so early as the age in which Abraham left it ; for, he and Sarah his wife stood in this relation to each other : " And yet, indeed, she is my sister ; she is the " daughter of my father, but not of my mother ; and she becarae ''my wife." Gen. xx. 12.

CHAPTER VI.

POLYGAMY.

THE equality! in the number of males and females born into the world, intimates the intention of God, that one woman should he assigned to one man ; for, if to one man be allowed an ex- clusive right to five or more women, four or more men must be deprived of the exclusive possession of any ; which could never be the order intended.

It seems also a pretty significant indication of the Divine will, that he at first created only one woman to one man. Had God

* The Roman law contiuucd the prohibition without hmits to the de- scendants of brothers and sisters. In the Levitical or English law, there is nothing to hinder a man from marrying his great niece.

t This equality is not exact. The number of male infants exceeds that of females in the proportion of nineteen to eighteen, or thereabouts ; which excess provides for for the greater consumption of male* by war, seafaring, and other dangerous or unhealthy occupations.

198 POLYGAMV.

intended polyga:ny foi' the species, it h prob;ib!e 1ir uouiil iiave begun witli it ; €Sj)ecially as, by giving to Adam more wives tliati one, the multiplication of the hunirui race would have ])ro- ceeded \vith a quicker progress.

Polygamy not only violates (he constitution of nature, and the apparent design of the Deity, but j)roduccs to the parties them- selves, and to the public, the following bad cfiVcts : contests and jealousies amongst the wives of the same hu->band ; distracted affections, or the loss of all affection in the husband himself; a voluptuousness in the rich, which dissolves the vigour of their intellectual as well as active faculties, producing that indolence and imbecility both of mind and body, which have long charac- terized the nations of the East ; the abasement of one half the liuman species, who, in countries where polygamy obtains, are degraded into mere instrunteiits of physical pleasure to the other half; neglect of children ; and the manifohl, and sometimes un- natural mischiefs, which arise from a scarcity of women. To compensate for these evils, polygamy does not offer a single ad- vantage. In the article of population, which it has been thought to promote, the connnunity gain nothing ;"* for the question is not,

* Nothing', I mean, compared with a slate in which marria2;c is nearly universal. Where marriages are less g^enoral, nn 1 many women nufrait- ful from the want of husbands, polygamy might at first add a little fo pi»ii- ulation, and but a little; for, as a variety of wives w<juld be sought •chiefly from temptations of voluptuousness, it would rather increase the demand for female beauty, than for the sex at large. And this liltle •jvould soon be made less by many deductions. For, firstly, as none but the opulent can maintain a plurality of wives, where polygamy obtains, Ihe rich indulge in it, while the rest take up with a vague and barren iucontinency. And, secondly, women would grow less jealous of their virtue, when they had nothing for which to reserve it, but a chamber in the haram; when their chastity was no longer to be rewarded with the rights and happiness of a wife, as enjoyed under the marriage of one wo- man to one inan. These considerations may be added to what is men- tioned in the text, concerning tlie easy and early settlement of children iia the world.

POLYGAMY. I9gr

whether one man will have more children by five or more wives than by one ; but whether these five wives would not bear the same, or a greater number of children to five separate husbands. And as to the care of the children when produced, and the send- ing of them into the world in situations in which they may be likely to form and bring up families of their own, upon which the increase and succession of the human species in a great de- gree depends ; this is less provided for, and less practicable, where twenty or thirty children are to be supported by the at- tention and fortunes of ooe father, than if they were divided into five or six families, to each of which were assigned the industry and inheritance of two parents.

Whether simultaneous polygamy was peripitted by the law of Moses, seems doubtful ;* but whether permitted or not, it was certainly practised by the Jewish patriarchs, both before that law, and under it. Tlie permission, if there was any, might be like that of divorce, " tor the hardness of their heart," in conde- scension to their established indulgences rather than from the general rectitude or propriety of the thing itself. The state of manners in Judea had probably undergone a rel'ormation in this respect before the time of Christ, for in the New Testament we meet with no trace or mention of any such practice being tole- rated. 1

For which reason, and because it .was likewise forbidden amongst the Greeks and Romans, we cannot expect to find any express law upon the subject in the Christian code. The words of Christ, t Matt. xix. 9. may be construed by an easy implica* tion to prohibit polygamy ; for, if " whosoever piittetli away his " wife, and rnarrietk another, cominitteth adultery," he who marrieth another without puttin^g away the first, is no less guilty of adultery ; because the adultery does not consist in the repu- diation of the first wife (for, however unjust or cruel that may

* See Deut. xvii. 17. sxi. 15.

t " I say unto you, Whosoever shall put away his wife, except it be for '■• foruication, aad shall murry another, comraitteth adultery."

200 rOLYGAMY.

be, it is not ai.Uiltcr>-,) but in entering into a second niairin«(e, during the legal existence and obligation of the first. The sev- eral passages in St. Paul's writings which speak ot" marriage, al- ways suppose it to signify the union of one man with one woman. Upon this supposition he argues, Rom. vii. 2, 3. " Know yc " not, brethren, (for I speak to them that know the law,) how " that the law hath dominion over a man as loni^ as he liveth ? " For the woman which hath an husband, is bound by the law " to her husband, so long as he liveth ; but if the husband be " dead, she is loosed from the law of her husband : so then, if " while her husband liveth she be married to another man, she " shall be called an adulteress." When the same Apostle per- mits marriage to his Corinthian converts, (which, " for the present " distress," he judges to be inconvenient,) he restrains the per- mission to the marriage of one husband with one wife : " it is *' good for a man not to touch a woman ; nevertheless, to avoid " fornication, let every man have his own wife, and let every " woman have her own husband.".

The manners of different countries have varied in nothing'more than in their domestic constitutions. Less polished and more luxurious nations have cither not perceived the bad effects of po- lygamy, or, if they did perceive them, they who in such coun- tries possessed the power of reforming the laws, have been un- willing to resign their own gratifications. Polygamy is retained at this day among the Turks, and throughout every part of As^ia in wiiich Christianity is not professed. In Christian countries it is universally prohihitcd. In Sweden it is punished with death. In England, besides the nullity of the second marriage, it sub- jects the offender to imprisonment and branding for the first of- fence, and to capital punishment for the second. And whatever may be said in behalf of polygamy, when it is authorized by the law of the land, the marriage of a second wife during the life- time of the first, in coi'utries where such a second marriage is void, must be ranked with the most dangerous and cruel of those frauds, by which a woman is cheated out of her fortune, her per- soHj and her happiness.

t)iVORC£. 201

The ancient Medes compelled their citizens, in one canton, to take seven wives ; in another, each woman to receive five hus- bands : according as war had made, in one quarter of their coun- try, an extraordniary havock among the men, or the women had been carried away by an enemy from another. This regulation, so far as it was adapted to the proportion which subsisted be- tween the numbers of males and females, was founded in the reason upon which the most improved nations of Europe proceed at present.

Caesar found amongst the inhabitants of this island a species of polygamy, if it may be so called, which was perfectly singular. Uxores, says he, habcnt dcni duodenique inter se communes, et rnaxime fratres cum fratribus, parentesque cum liberis ; sed si qui sunt ex his nati, eorum habentur liberi, quo primuni virgo quosque deducta est.

CHAPTER VII.

OF DIVORCE.

BY divorce, I mean the dissolution of the marriage contract^ by the act, and at the will of the husband.

This power was allowed to the husband among the Jews, the Greeks, and latter Romans ; and is at this day exercised by the Turks and Persians.

The congruity of such a right with the law of nature, is the question before us.

And, in the first place, it is manifestly inconsistent with the duty which the parents owe to their children ; which duty can never be so well fulfilled as by their cohabitation and united care. It is also incompatible with the right which the mother possesseSj as well as the father, to the gratitude of her children, and the comfort of their society ; of both which she is almost necessarily deprived, by her dismission from her husband's family. 56

202 DIVORCE.

Where this objection does not interfere, I know ot" no jirinciplc of the law of nature applicable to the question, beside that of general expediency.

For, if we say, that arbitrary divorces are excluded by the terms of the marriage contract, it may be answered, that the contract might be framed so as to admit of this condition.

If we argue with some moralists, that the obligation of a con- tract natirrally continues so long as the purpose which the con- tracting parties had in view retiuires its continuance, it will be difljcult to show what purpose of the contract (the care of children excepted) should confine a man to a woman, from whom he seeks to be loose.

If we contend with others, that a contract cannot, by the law of nature, be dissolved, unless the parties be replaced in the situ- ation which each possessed before the contract was entered into ; we shall be called upon to prove this to be an universal or indis- pensable property of contracts.

I confess myself unable to assign any circumstance in the mar- riage contract, which essentially distinguishes it from other con- tracts, or which proves that it contains, what many have ascribed to it, a natural incapacity of being dissolved by the consent of the parties, at the option of one of them, or either of them. But if we trace the eCfects of such a rule upon the general happiness of married life, we shall perceive reasons of expediency, that abundantly justify the policy of those laws which refuse to the husband the power of divorce, or restrain it to a few extreme and specific provocations ; and our principles teach us to pro- nounce that to be contrary to the law of nature, which can be proved to be detriaiental to the common happiness of the human species.

A lawgiver, whose counsels were directed by views of general utility, and obstructed by no local impediment, would make the marriage contract indissoluble during the joint lives of the parties, for the sake of the following advantages : —

I

DIVORCE. 20S

I. Because this tends to preserve peace and concord between married persons, by perpetuating their common interest, and by inducing a necessity of mutual compliance.

There is great weight and substance in both these considera- tions. An earlier terimination of the union would produce a se- parate interest. The wife would naturally look forward to the dissolution of the partnership, and endeavour to draw to herself a fund against the time when she was no longer to have access to the same resources. This would beget peculation on one side, and mistrust on the other ; evils which at present very little dis- turb the confidence of married life. The second effect of making the union determinable only by death, is not less beneficial. It necessarily happens, that adverse tempers, babits, and tastes, oftentimes meet in marriage^ In which case, each party must take pains to give up what offends, aiid practice what may gratify the other. A man and woman in love with each other, do this insensibly : but love is neither general nor durable ; and where that is wanting, no lessons of duty, no delicacy of sentiment, will go half so far with the generality of mankind and womankind, as this one intelligiljle reflection, that they must each make the best of their bargain ; and that, seeing they must either both be rais- prable, or both share in the same happiness, neither can find their own comfort, but in promoting the pleasure of the other.« These compliances, tiiough at first extorted by necessity, become in time easy and mutual ; and, though less endearing than assi- duities which take their rise from affection, generally procure to the married pair a repose and satisfaction sufficient for their hap- piness.

II. Because new objects of desire would be continually sought after, if men could, at will, be released from their subsisting eu- gagements. Suppose the husband to have once preferred his v/ife to all other women, the duration of this preference cannot be trusted to. Possession makes a great difference ; and there is no other security against the invitations of novelty, than the known impossibility of obtaining the object. Did the cause

204 DIVORCE,

which brings the sexes together, hold them together by the sarae force with which it first attracted them to each other, or could the woman be restored to her personal integrity, and to all the advantages of her virgin estate, the power of divorce might be deposited in the hands of the husband wilh less danger of abuse or inconvcniency. But constituted as mankind are, and injured as the repudiated wife generally must be, it is necessary to add a stability to the condition of married women, more secure than the continuance of their husband's affection ; and to supj)ly to both sides, by a sfense of duty and of obligation, what satiety has impaired of passion and of personal attachment. Upon the whole, the power of divorce is evidently and greatly to the disr advantage of the woman ; and the ojily question appears to be^ whether the real and permanent happine?s of one half of the spe-? cies should be surrendered to the caprice and voluptuousness of the other ?

We have considered divorces as depending upon the will of the husband, because that is the way in which they have actu- ally obtained in many parts of the world : but the same objec- tions apply, in a great degree, to divorces by mutual consent ; especially when we consider the indelicate situation, and small prospect of happiness, which remains to the party who opposed his or her dissent to the liberty and desires of the otlier.

The law of nature admits of an exception in favour of the in- jured party, in cases of adultery, of obstinate desertion, of at- tempts upon life, of outrageous cruelty, of incurable madness, and perhaps of personal imbecility ; but by no means indulges the same privilege to mere dislike, to opposition of humours and inclinations, to contrariety of taste and temper, to complaints of coldness, neglect, severity, peevishness, jealousy ; not that these reasons are trivial, but because such objections may alwaj^s be alleged, and are impossible by testimony to be ascertained ; so that to allow implicit credit to them, and to dissolve marriages whenever either party thought fit to pretend them, would leafl in its efiects to all th? licentiousness of arbitrary divorqes.

DIVORCE. 205

Milton's stoiy is well known. Upon a quarrel with his wife, he paid his addresses to another woman, and set forth a public vindication of his conduct, by attempting to prove, that confirmed dislike was as just a foundation for di&solving the marriage con- tract as adultery : to which position, and to all the arguments by which it can be supported, the above consideration affords a suf- ficient answer. And if a married pair, in actual and irreconci- lable discord, complain that their happiness would be better con- sulted by permitting them to determine a connexion, which is become odious to both, it may be told them, that the same per- mission, as a general rule, would produce libertinism, dissension, and misery, amongst thousands, who are now virtuous, and quiet, and happy in their condition : and it ought to satisfy them to re- flect, that when their happiness is sacrificed to the operation of an unrelenting rule, it is sacrificed, to the happiness of the com' munity.

The Scriptures seem to have drawn the obligation tighter than the law of nature left it. "Whosoever," saith Christ, "shall " put away his wife, except it be for fornication, and shall many " another, committeth adultery ; and whoso marrieth her which " is put away, doth commit adultery." Matt. xix. 9. The Jaw of Moses, for reasons of local expediency, permitted the Jewish husband to put away his wife ; but whether for every cause, or for what causes, appears to have been controverted amongst the interpreters of those times. Christ, the precepts of whose reli- gion were calculated for more general use and observation, re- vokes this permission, (as given to the Jews " for the hardness of " their hearts,") and promulges a law which was thenceforward to confine divorces to the single cause of adultery in the wife. And I see no sufficient reason to depart from the plain and strict •ncaning of his words. The rule was new. It both surprised and offended his disciples ; yet Christ added nothing to relax or explain it. .

Inferior causes may Justify the separation of husband and wife, ;4iihough they will not authorize such a dissolution of the mar-

20t> DIVORCE.

riage confracl as would leave either at liberlj to marry again , for it is (bat liberty in nbicb tlie danger and mischief ol divorces principally consist. It the care of children does not require that they should live together, and it is become, in the serious judg- ment of both, necessary for their mutual happiness that they should separate, let them separate by consent. Nevertheless, this necessity can hardly exist, without guilt and misconduct on one side or on both. Moreover, cruelty, ill usage, extreme vio- lence, or moroseness of temper, or other great and continued provo- cations, make it lawful for the party aggrieved to withdraw from the society of the offender without his or her consent. The law which imposes the marriage vow, whereby the parties promise to " keep to each other," or, in other words, to live together, must be understood to impose it with a silent reservation of these cases ; because the same law has constituted a judicial relief from the tyranny of the husband, by the divorce a mensa et toro, and by the provision which it makes for the separate maintenance of the injured wife. St. Paul likewise distinguishes between a wife's merely separating herself from the family of her husband, and her marrying again : — " Let not the wife depart from her -*' husband ; but, and if she do depart, let her remain unmarried." The lav.' of this country, in conformity to our Saviour's injunc- tion, confines the dissolution of the marriage contract to the sin- gle case of adultery in the wife ; and a divorce even in that case, can only be brought about by the operation of an act of Parlia- ment, founded upon a previous sentence in the spiritual court, and a verdict against the adulterer at common law ; which pro- ceedings, taken together compose as complete an investigation of the complaint as a cause can receive. It has lately been pro- posed to the legislature to annex a clause to these acts, restrain- ing the offending party from marrying with the companion of her crime, who, by the course of proceeding, is always known and convicted ; for there is reason to fear, that adulterous connexions are often formed with the prospect of bringing them to this con- clusion ; at least, when the seducer has once captivated the af-

DIVORCE. 207

fcction of a married woman, he may avail himself of this temptinj^ argument to subdue her scruples, and complete his victory ; and the legislature, as the business is managed at present, assists by its interposition the criminal design of the otTonders, and confers a privilege where it ought to inflict a punishment. The proposal deserved an experiment ; but something more penal will, I ap- prehend, be found necessary to check the progress of this alar- ming depravity, ^yhether a hiw might not be framed, directing the fortune of the adulteress to descend, as in case of her natural ■ death; reserving, however, a certain proportion of the produce of it, by way of annuity, for her subsistence, (such annuity, in no case, to exceed a certain sum,) and also so far suspending the es- tate in the hands of the heir, as to preserve the inheritence to any children she might bear to a second marriage, in case there was none to succeed in the place of their mother by the first ; whe- ther, I say, such a lavv would not render female virtue in higher life less vincible, as well as the seducers of that virtue less urgent in their suit, we reconmiend to the deliberation of those, who arc willing to attempt the reformation of this important, but most in- corrigible, class of the community. A passion for splendour, for expensive amusements and distinctions, is commonly found, in that description of women who would become the objects of such a law, not less inorilinate than their other appetites. A severity of the kind we propose, ap{)lies immediately to that passion. And there is no rootn for any complaint of injustice, since the provisions above stated, with others which might be contrived, confine the punishment, so far as it is possible, to the person of the oftenJer, suffering the estate to remain to tl>e heir, or within the family of the ancestor from whom it came, or to attend the appointments of his will.

Sentences of the ecclesiastical courts, which release the par- tics a vinculo matrimonii by reason of impubprty, frigidity, con- sanguinity within the prohibited degrees, prior to marriage, or want of the requisite consent of parents or guardians, are not dis- iohitions of the marriage contract, but judicial declarations that

208 MARRIAGE.

there never was any marriage ; such impediment subsisting at the time, as rendered the celebration of the marriage rite a mere nullity. And the right itself contains an exception of these im- pediments. The man and woman to be married are charged, " if " they know any impediment why they may not be lawfully "joined together, to confess it ;" and assured, " that so maiiy " as are coupled together, otherwise than God's word doth allow, " are not joined together by God, neither is their matrimony law- " ful ;" all which is intended by way of solemn notice to the parties, that the vow they are about to make will bind their con- ciences and authorize their cohabitations, only upon the supposi- tion that no legal impediment exists.

CHAPTER yill.

MARRIAGE.

WHETHER it hath grown out of some tradition of the Di- vine appointment of marriage in the persons of our first parents, or merely from a design to impress the obligation of the mar- riage contract with a solemnity suited to its importance, the marriage rite, in almost all countries of the world, has been madje a religious ceremony ;* although marriage, in its own na- ture, and abstracted from the rules and declarations which the Jewish and Christian Scriptures deliver concerning it, be prop- erly a civil contract, and nothing more.

As to one main article in matrimonial alliances, an alteration has taken place in the fashion of the world ; the wife now brings money to her husband, whereas anciently the husband paid

* R was not, however, in Christian countries required, that marriages should be celebrated in churches, till the thirteenth century of the Chris- tian a:ra. Marriages in England, during the Usurpation, were solemni- sed before Justices of the Peace; but for what purpose this novelty was introduced, except to degrade the clergy, does not appear.

MARRIAGE. 209

money fo the taiiuly of the wife ; as was the case among the Jewish Paliiarchs, the Greeks, and the old inhabitants of Ger- manrj* This alteration has proved of no small advantage to the female sex ; for, thejr importance in point of fortune pro- cures to them, in modern times, that assiduity and respect which are wanted to compensate for the inferiority of their strength ; but which their personal attractions would not always secure.

Our business is with marriage as it is established in this coun- try. And in treating thereof, it will be necessary to state the terms of the marriage vow, in order to discover, —

1. What duties this vow creates.

2. What situation of mind at the time is inconsistent with it.

3. By what subsecjucnt beiiaviour it is violated.

The husband promises, on his part, " to love, comfort, hon- " our, and keep his wife ;" the wife, on hers, "to obey, serve, " love, honour, and keep her husband ;" in every variety of liealth, fortune, and condition ; and both stipulate to "forsake all others, and to keep only unto one another, so long as they " both shall live." This promise is called the marriage vow ; is witnessed before God and the congregation ; accompanied with prayers to Almighty God tor his l)lessing upon it ; and attended with such circumstaiices of devotion and solemnity, as place the obligation of it, and the guilt of violating it, nearly upon the same foundation with that of oaths.

The parties by this vow engage their personal fidelity express- ly and specificaily ; they engage likewise to consult and pro- mote each other's happiness ; the wife, moreover, promises obe- dience to her- husband. Mature may have made and left the sexes of the human species nearly equal in their faculties, and y)evt"ecliy so in their rights ; but to guard against those competi- tions which equality, or a contested superiority, is almost sure

* The ancient Asayrians sold their hcaulies bv an annual auction. The prices were applied by way of portions to the more homely. By this contrivance, all of both sorts were disposed of iu marriage.

27

210 MARKIAGE. »

to produce, the Christian Scriptures enjoin upon the wife that obedience which she here promises, and in terms so perempto- ry and absolute, that it seems to extend to every thing not crim- inal, or not entirely inconsistent with the woman's happiness. " Let the wife," says St. Paul, " be subject to her own husband " in every thing." — " The ornament of a meek and quiet spir- " it," says the same Apostle, speaking of the duty of wives, " is, in the sight of God, of great price." No words ever ex- pressed the true merit of the female character so well as these.

The condition of human life will not permit us to say, that no one can conscientiously marry who does not pi efer the person at the altar to all other men or women in the world ; but we can have no dilTicultj'^ in pronouncing, (whether we respect the end of the institution, or the plain terms in which the contract is con- ceived,) that whoever is conscious, at the time of his marriage, of such a dislike to the w^oman he is about to marry, or of such a subsisting attachment to some other woman, that he cannot reasonably, nor does, in fact, expect ever to entertain an affec- tion for his t'uture wife, is guilty, when he pronounces the mar- riage vow, of a direct and deliberate prevarication ; and that, too, aggravated by the presence of those ideas of religion, and of the Supreme Being, which the place, the rilual, and the so- lemnity of the occasion, cannot fail of bringing to his thoughts. The same likewise of the woman. This charge must be imput- ed to all who, from mercenary motives, marry the objects of their aversion and disgust ; and likewise to those who desert, from any motive whatever, the object of their affection, and, without being able to subdue that affection, marry another.

The crime of falsehood is also incurred by the man who in- tends, at the time of his marriage, to commence, renew, or con- tinue a personal commerce with any other woman. And the parity of reason, if a wife be capable of so much guiil, extend" to her.

The marriage vow is violated.

1. By adultery.

DUTY OF PARENTS. 211

n. By any behaviour which, knowingly, renders the life of the other miserable ; as, desertion, neglect, prodigality, drunk- ei)ness, peevishness, penuriousness, jealousy, or any levity of conduct which may administer occasion of jealousy.

A late regulation in the law of marriages, in this country, has made the consent of the father, if he be living, of the mother, if she survive the father, and remain unmarried, or of guardians, if both parents be dead, necessary to the marriage of a person under twenty-one years of age. By the Roman law, the con- sent et avi et patris was required so long as they lived. In France, the consent of parents is necessary to the marriage of sons, until they attain to thirty years of age ; of daughters, until twenty-five. In Holland, for sons till twenty-five ; for daugh- ters, till twenty. And this distinction between the sexes ap- j)cars to be well founded ; for, a woman is usually as well qual- ified for the domestic and interior duties of a wife or mother at eighteen, as a man is for the business of the world, and the more arduous care of providing for a family, at twenty-one.

The constitution also of the human species indicates the same distijiction.*

CHAPTER IX.

OF THE DUTY OF PARENTS.

THAT virtue, which confines its beneficence within the walls of a man's own house, we have been accustomed to consider as little better than a more refined selfishness : and yet it will be confessed, that the subject and matter of this class of duties are inferior to none in utility and importance : and where, it may

* Cum vis prolem procrcandidiiitius hrereat in marc quira in foemina, populi numerus neqiiaquam minuetur, si serius veuerem colere incepe- rint yiri.

212 DUTY OF PARENTS.

be af=kecl, is viitue the most valuable, but nbero it does ibf inoil good ? What duty is tbc most obligatory, but that on which the most depends ? And where have wc happiness and miseiy so much in our power, or liable to be so affected by our conduct, as in our own families ? It will also be acknowledged, that the good order and happiness of the world is better uplield whilst each man applies himself to his own concerns and the care of his own family, to which he is present, thijn if every man. from an e.xcess of mistaken generosity, should leave his own busines.- to undertake his neighbour's, which he nul^t alwajs manage with less knowledge, conveniency, and success. If, therefore, the low estimation of these virtues be well founded, it must be owing, not to their inferior importance, but to some defect or impurity in the motive. And indeed it rannot be denied, but that it is in the power of (issociation so to unite our children's interest witli our own, as that we shall often pursue both from the same motive, place both in the same object, and with as little sense of duty in one pursuit as in the other. Where this is the case, the judg- ment above stated is not far from the truth. And so often as we find a solicitous care of a man's own family, in a total absence or extrenie penury of every other virtue, or interfering with other duties, or directing its operation solely to the temporal hapjiiness of the children, placing that happiness and amusement in indulgence whilst they are young, or in advaiiceisient of fortur:© when thev grow up, tlierc is reason to bel:e\e, that this is the case. In this way, the common opinion concerning these duties may be accounted for and defen led. if we look to the sul)ject of them, we perceive them to be indispensable : If we regard the motive, we find them often not very meritorious. Wherefore, although a man seldom rises high in our esteem who has notliing to recommend him besides the care of his own family, yet ue always condemn the neglect of this duly with the utmost severe jty ; both by reason of the manifest and imiricdiate miscliief which we see arising from this neglect, and because it argues a want not only of parental afTeclion, but of those moral prinr.i]iles

DUTY OF PARENTS. 213

which ouiiht to come in aid of thai afFcction where it is wantincr.

O O

And ifj on the other hand, our praise and esteem of these duties be not proportioned to the good they produce, or to the indigna- tion with which wc resent the absence of them, it is for this rea- son, that virtue^ is the most valuable, not where, in strictness, it produces the most good, but where it is the most wanted : which is not the case here ; because its place is often supplied by in- stincts, or involuntary associations. Nevertheless, the oflices of a parent may be discharged, from a consciousness of their obli- gation, as well as other duties ; and a sense of this obligation is sometimes necessary to assist the siiniulus of parental aflnction ; especially in stations of life, ia which the wants of a iamily can- not be supplied without the co!itinual hard labour of the father, nor without his refraining from many indulgences and recreations which unmarried men of like condition are able to purchase. Where the parental affection is sufficiently strong, or has fewer difficulties to surmount, a principle of dilty may still be wanted to direct and regulate its exertions : for, otherwise, it is apt to spend and waste itself in a womanish fondness for the person of die child, and improvident attention to his present ease and grn- titication ; a pernicious facility and compliance with his humours ; an excessive and superfluous care to provide the externals of hap- piness, with little or no attention to the internal sources of virtue and satisfaction. Universally, wherever a parent's conduct is prompted or directed by a sense of duty, there is so much virtue.

Having premised thus much concerning the place which pa- rental duties hold in the scale of human virtues, we proceed to state and explain the duties themselves.

When moralists tell us, that parents are bound to do all they can for tiieir children, they lei! us more than is true ; for, at that rate, every expense ^\hich might have been spared, and every profit omitted which might have been made, would be criminal.

The duty of parents has its limits, like other duties ; and ad- mits, if not of perfect precision, at least of rules definite enough fur application.

214 DUTY OF PARENTS.

These rules may be explained under the several heads of maintenance, education, and a reasonable provision for the child's happiness in respect of outward condition.

I. Maintenance.

The wants of children make it necessary that some person maintain them ; and, as no one has a right to burthen others by his act, it follows, that the parents are bound to undertake this charge themselves. Beside this plain inference, the affection of parents to their children, if it be instinctive, and the [)rovision which God has prepared in the person of the mother for the sus- tentation of the infant, concerning the existence and design of which there can be no doubt, are manifest indications of the Di- vine will.

From hence we learn the guilt of those who run away from their families, or, (what is much the same,) in consequence of idleness or drunkenness, throw them upon a parish ; or who leave them destitute at their death, when, by diligence and frugality, they might have laid up a provision for their support : also of those who refuse or neglect the care of their bastard offspring, abandoning them to a condition in which they must either perish or become burthensome to others : for the duty of maintenance, like the reason upon which it is founded, extends to bastards, as well as to legitimate children.

The Christian Scriptures, although they concern themselves little with maxims of prudence or economy, and much less au- thorize worldly-mindedness or avarice, have yet declared in ex- plicit terms their judgment of the obligation of this duty : — " if " any provide not for his own, especially for those of his own " household, he hath denied the faith, and is worse than an infi- ♦' del," 1 Tim. v. 8 ; he hath disgraced the Christian profession, and fallen short in a duty which even infidels acknowledge.

II. Education.

Education, in the most extensive sense of the word, may com- prehend every preparation that is made in our youth for the se- quel of our lives ; and in this sense 1 use it.

DUTY OF PARENTS. 215

Some such preparation is necessary for children of all condi- tions, because, without it, they must be miserable, and probably will be vicious, when they giow up, cither from want of the means of subsistence, or from want of rational and inoffensive oc- cupation. In civilized lite, every thing is efl'ected by art and skill. Whence a person who is provided with neither (and nei- ther can be acquired without exercise and instruction) will be useless ; and he that is useless, will generally be at the same time mischievous to the community. So that to send an unedu- cated child into the world is injurious to the rest of mankind ; it is little better than to turn out a mad dog or a wild beast into the streets.

In the inferior classes of the community, this principle con- demns the neglect of parents, who do not inure their children be- times to labour and restraint, by providing them with apprentice- ships, services, or other regular employment, but suffer them to waste tlieir youth in idleness and vagrancy, or to betake them- selves to some lazy, trifling, and precarious calling : for, the consequence of having thus tasted the sweets of natural liberty, at an age when their passion and relish for it are at the highest, is, that they become incapable, for the remainder of their lives, of continued industry, or of persevering attention to any thing ; spend their time in a miserable struggle between the importunity of want, and^ the irksomeness of regular application ; and are prepared to embrace every expedient which presents a hope of supplying their necessities without confining them to the plough, the loom, the shop, or the counting-house.

In the middle orders of society, those parents are most repre- hensible, who neither qualify their children for a profession, nor enable them to live without one ;* and those in the highest, who, from indulgence, or avarice, omit to procure their children those liberal attainments, which are necessary to make them useful in

* Amongst the Athenians, if the parent did not put his child into a way of getting a livelihood, the child was not bound to make provision for the parent when old and necessitous.

216 DUTV OF PARENTS.

the stations to which they are destined. A man ot lortmii:, uho- permits his son to consume the season ot education in hiintin/, shooting, or in frequenting horse-races, assemblies, or other un- odilying, tliough not vicious diversions, defrauds the community of a benefactor, and bequeaths them a nuisance.

Some, though not the same, preparation for the sequel of their lives, is necessary for youth of every description ; and therefore for bastards, as well as for children of better expectations. Con- sequently they who leave the education of thei^ bastards to chance, contenting themselves with making pnjvision for their subsistence, desert half their duty.

HI. A reasonable provision for the happiness of a child, in res- pect of outward condition, requires three things : a situation suited to his habits and reasonable expectations ; a competent provision for the exigences of that situation ; and a probable se- curity for his virtue.

The two first articles will vary with the condition of the pa- rent. A situation somewhat approaching in rank and condition to the parent's own ; or, where that is not practicable, similar to what other parents of like condition provide for their children, bounds the reasonable, as well as (generally speaking) the actual expectations of the child, and therefore contains the extent of the parent's obligation.

Hence, a peasant satifies his duty who sends out his children, properly instructed for their occupation, to husbandry, or to any branch of manufacture. Clergymen, lawyers, ])hysicians, offi- cers in the army or navy, gentlemen possessing moderate fortune* of inheritance, or exercisjng trade in a large or liberal way, are required, by the same rule, to provide their sdUs with learned professions, commissions in the army or navy, places in public offices, or reputable branches of merchandise. Providing a child with a situation, includes a competent supply for the expenses cf that situation, until the profits of it enable the child to support himself. Noblemen and gentlemen of high rank and fortune may be bound to transmit an inheritance to the representatives of their

DUTY OF PARENTS. ^11

family, sufficient for their support without the aid of a trade oi professsion, to which there is little hope that a youth, who has been flattered with other expectations, will apply himself with diligence or success. In these parts of the world, public opinion has assorted the members of the community into four or five gen- eral classes, each class comprising a great variety of employ- ments and professions, the choice of which must be comlfiiitted to the private discretion of the parent.* All that can be expected from parents as a duty, and therefore the only rule which a moral- ist can deliver upon the subject is, that they endeavour to preserve ihcir children in the class in which they are born, that is to say,

* The health ami virtue of a child's future life are fconsiderations so superior to all others, that whatever is likely to have the smallest influ- ence upon these, deserves the parents' first attention. In respect of health, agriculture, and all active, rural, and out-of-door employments, are to be preferred to manufactures, and sedentary occupations. In fespect of virtue, a course of dealings in which the advantage is miitual, in w^liich the profit on bne side is connected with the benefit of the other, (which is the case in trade, and all serviceable art or labour,) is more favourable to the moral character, than callings in which one man's gain is another man's loss ; in which what you acquire is acquired without equivalent, and parted with in distress ; as in gaming, and whatever partakes of ga- ming, and in the predatory profits of war. The following distinctions also deserve notice. A business, like a retail trade, in which the profits are small and frequent, and accruing from the employment, furnishes a moderate and constant engagement to the mind, and so far suits better with the general disposition of mankind, than professions which are sup- ported by fixed salaries, as stations in the church, army, navy, revenue, public offices, &c. or wherein the profits are made in large sums, by a few great coticerns, or fortunate adventures : as in many branches of whole- sale and foreign merchandise, in which the occupation is neither constant, nor the activity so kept alive by immediate encouragement. For secu- rity, manual arts exceed merchandise, and such as supply the wants of mankind are better than those which minister to their pleasure. Situa- tions which promise an early settlement in marriage, are, on many ac^ counts, to be chosen before those which rcrniire a lonijer waiting for p. larger establishment.

S8

:\5 DUTY OF PARENTS.

in ivhich otliers of similar expectations arc .'iccustomed lo ha placed ; and that they be careful to confine tlicir hopes and hab- ils of indulgence to objects which will conthiuc to be attainable. It is an ill-judged thrift, in sonic rich i)arents, to bring up their sons to mean einploymcnts, for the sake of saving the charge of a more expensive education : tor these sons, when they be- come masters of their liberty and fortune, will hardly continue in occupations by which Uiey think themselves degraded, and are seldom qualified for any thing better.

An attention, in the first place, to the exigences of the chil- dren's respective conditions in the world ; and a regard, in the second place, to their reasonable expectations, always postponing the expectations to the exigences when both cannot be satisfied, ought to guide parents in the disposal of their lortunes after their death. And these exigences and expectations must be measured by the standard which custom has established ; for there is a certain apearance, attendance, establishment, and mode of living, which custom has annexed to the several ranks and oitlers of civil life, (and which compose what is called decency.^ together with a certain society, and particular pleasures belonging to each class : and a young person, who is withheld from sharing in these by want of Ibrtune, can scarcely be said to have a fair chance for happine^s ; the indignity and mortification of such a seclusion being what (q\w tempers can l)ear, or bear with contentment. And as to the second consideration, of what a child may reason- ably expect I'rom his parent, he will expect what he sees all or most others in similar circumstances receive ; and we can hardly call expectations unreasonable which it is impossible to suppress.

By virtue of this rule, a parent is justrfied in making a differ- ence between his childven, according as they stand in greater or less need of the assistance of his fortune, in consequence of Uie dili'erence of their age or sex, or of the situations in which they are placed, or the various success which they have met with.

On account of the few lucrative employments which arc left to the female sex, and by consequence the little opportunity they

DUTY OF PARENTS. 213

hnve of rukling to their income, daughters ought to be the par- ticular objects of a parent's care and foresight ; and as an option of marriage, from which they can reasonably expect happiness, is not presented to every woman who deserves it, especially in the present times, in which a licentious celibacy seems to have grown into fashion with the men, a father should endeavour to enable his daughters to lead a single life with independency and decorum, even though he subtract more for that purpose tVom the ])ortio!)S oi his sons than is agreeable to modern usage, or than they expect.

But vvlK-n the exigences of their several situations are provided ll)r, and not before, a parent ought to admit the second conside- ration, the satisfaction of his children's expectations : and upon iijat principle to prefer the eldest son to the rest, and sons to daughters ; which constitutes the right, and the whole right, of jjrimogeniture, as well as the only reason for the preference oi one sex to the other. The preference, indeed, of the fust-born lias dne public good effect, that if the estate were divided equal- ly amongst the sons, it would probably make them all idle ; Tvhcreas, by itu; present rule of descent, it makes only one so •, which is the less evil of the two. And it must farther be obser- ved, on the part of sons, that if the rest of the community make it a rule to prefer sons to daughters, an individual of that com- munity ought to guide himself by the same rule upon principles of mere equality. For, as the son suffers by the rule in the for- tune he may expect in marriage, it is but reasonable that he should receive the advantage of it in his own inheritance. In- deed, whatever the rule be, as to the pretereiice of one sex to tiiv<^ other, marriage restores the ecjuality. And as monej' is ge- nerally more convertible to profit, and more likely \o promote industry, in (he hands of men than of women, the custom of this ■country, may properly be complied with, when it does not in- terfere with the weightier reason explained in the last paragraph.

The point of t!ie children's actual expectations, together with ffhc expediency of •jubjectin'^r the illicit rommcrro of 1]\v. ?o.kq« 1©

s'20 DUTY OF PARENTS.

every discouragement which it can receive, makes the diflerencc between the claims of legitimate children and of bastards. But neither reason will in any case justify the leaving of bastards to the world, without provision, education, or profession ; or, what is more cruel, without the means of continuing in the situation to which the parent has introduced them ; which last is,' to leave them to inevitable misery.

At'ter the first re(]uisite, namely, a provision for the exigences of his situation, is satisfied, a parent may dijriinish a child':i portion, in order to punish any flagrant crime, or to punish con- tumacy and want of filial duty in instances not otherwise crimi- nal ; for a child who is conscious of bad behaviour, or of con* tempt of his parent's will and happiness, cannot reasonably ex-; pect the same instances of his munificence.

A child's vices may be of that sort, and his vicious habits so incorrigible, as to afford much the same reason for believing that he will waste or mis-employ the fortune put into his j)ovver, as if he were mad or idiotish, in which case a parent may treat him aa a madman or an idiot ; that is, niay deem it sufficient to provide for his support, by an annuity equal to his wants and innocent enjoyments, and which he may be restrained from alienating. This seems to be the only case in which a disinherison, nearly absolute, is justifiable.

Let not a father hope to excuse an inofficious disposition of hia fortune, by alleging, that " every man may do what he will with " his ovyn." All the truth which this expression contains is, that his discretion is under no control of law ; and that his will, how- ever capricious, will be valid. This by no means absolves his conscience from the obligations of a parent, or imports that he may neglect, without injustice, the several wants and expecta- tions of his family, in order to gratify a whim or a pique, or in- dulge a preference founded in np reasonable distinction of merit and situation. Although in his intercourse with his family, am; the lesser endearments of domestic life, a parent may not ahvay- resist bis partiality to a favourite child ; (which, hrrrevcr, shoul''

I

DUTY OF PATIENTS, 22}

be both avoided and concealed, as oftentimes productive of last- ing jealousies and discontents ;) yet. when he sits down to make his will, these tendernesses must give place to more manly de- liberations.

A father of a family is bound to adjust his economy with 9. view to these demands upon his fortune ; and until a sufficiency for these ends is acquired, or in due time probably will be ac- quired, (for, in human affairs, probability is enough,) frugality and exertions of industry are duties. He is also justified in de- clining expensive liberality ; for, to take from those who vi^ant, in order to give to those who want, adds nothing to the stock of public happiness. Thus far, therefore, and no farther, the plea of " children," of " large families," " charity begins at home," &c. is an excuse for parsimony, and an answer to those who so- licit our boqnty. Beyond this point, as the use of riches be- comes less, the desire of laying up should abate proportionably, The truth is, our children gain not so much as we imagine, in the chance of this wqi'ld's happiness, or even of its external pros- perity, by setting out in it with large capitals. Of those who die rich, a great part began with little. And, in respect of en- joyment, there is no comparison between a fortune which a man acquires himself by a fruitful industry, or a series of successes in his business, and one found in his possession, or received fronc} another.

A principal part of the parent's duty is still behind, viz. the using of proper precautions and expedients, in order to form and preserve his children's virtue.

To us, who believe that, in one stage or other of our exist- ence, virtue will conduct to happiness, and vice terminate in mis- ery ; and who observe withal that men's virtues and vices are, to a certain degree, produced or afifected by the management of their youth, and the situations in which they are placed ; to all who attend to these reasons, the obligation to consult a child's virtue will appear to differ in nothing from that by which the pa- rent is bound to provide for his maintenance or fortune. The

m DUTY OF PARENTS.

child's interest is concerned in the one means of happiness a- well as in the other ; and both means are equally, and almost exclusively, in the parent's power.

The first \)o'\nl to be oniloavored after is, to impress upon chil- dren the idea of accovntublcncss, that is, to accustom them to look forward to the consequences of their actions in another ivorld ; which can only be brought about by the parents visibly acting with a view to these consequences thnmselves. Parents, to do them justice, are seldom sparing in lessons of virtue and religion ; in admonitions which cost little, and profitless ; whilst their example exhibits a continual contradiction of what they teach. A father, for instance, will, with much solenmity and apparent earnestness, warn his son against idleness, excess in drinkin;';, debauchery, and extravagance, who himself loiters sbout all day wiliiout employment ; comes home every night drunk ; is made infamous in his neighbourhood by some proili- gate connexions ; and wastes the fortune which should supjioil or remain a provision for his family, in riot, or luxury, or osten- tation. Or be will discourse gravely before his children of the obligation and importance of revealed religion, whilst they see the most frivolous, and oftentimes feigned excuses detain bin; from its reasonable and solemn ordinances. Or he will set be- fore them, perhaps, the supreme and tremendous authority of Almighty God ; that such a Being ought not to be named, or even thought upon, without sentiments of profound awe and ven- eration. This may be the lecture he delivers to his family one hour ; when the next, if an occasion arise to excite his anger, his mirth, or his surprise, they will hear him treat the name of the Deity with the most irreverent profanation, and sport with the terms and denunciations of the Christian religion, as if they were the language of some ridiculous and long-exploded sui)erstition. Now, even a child is not to be in:»posed upon by such mockery. !Ie sees through the grimace of this counterfeited concern for virtue. He discovers that bis parent is acting a part ; and rc- feivc^ his admonitions as he Vvoiild hear the same maxims from

DUTY OF PARENTS. ^ 223

the mouth of a player. And when once this opinion has taken possession o( the chihl's mind, it has a fatal effect upon the pa- rent's inlhience in al! subjects ; even in those, in which he him- self may be sincere and convinced. Vvhereas a silent, but ob- servable regard to the duties of religion, in the parent's own be- haviour, will lake a sure and gradual hold of the child's disposi- tion, much beyond formal reproofs and chidings, which, being generally prompted by some present provocation, discover more of anger than of principle, and are always received with a tem- poraiy alienation and disgust.

A good parent's first care is, to be virtuous himself; his se- cond, to make his virtues as easy afld engag.ing to those about bini as their nature Avill atlsnlt. V'irtue itself offends, when coup- led with forbidding manners. And some virtues may be urged to such excess, or brought forward so unseasonably, as to dis- courage and repel those who observe and ^vho are acted upon by them, instead of exciting an inclination to imitate and adopt them. Young minds are particularly liable to these unfortunate impressions. For instance, if a father's economy degenerate in- to a minute and teasing parsimony, it is odds but that the son, who has suffered under it, set out a sworn enemy to all rules of order and frugality. If a father's piety be morose, rigorous, and tinged with melancholy, perpetually breaking in upon the recre- ations of his tamily, and surfeiting them with the language of re- ligion upon all occasions, theie is danger lest the son carry from home with him a settled prejudice against seriousness and reli- gion, as inconsistent with every plan of a pleasurable life.; and turn out, when he mixes with the world, a character of levity o;* dissoluteness.

Something likewise may be done towards the corrcclnig oj' impioving of those early inclinations which children disoo'-er, by disposing them into situaiioMs the least dangerous^ to their particular characters. Thus, i would make choice of a retired life for young p':>rsons addicted to iiceulious pleasures ; of pri- yate stations for the proud and passionate ; of liberal professions,

^24 tUGIlTS OF PARENTS.

and a town life, for the mercenary and sottish ; and not, accor ding to the general practice of parents, send dissolute youths in- to the army ; penurious tempers to trade ; or make a crafty lad an attorney ; or flatter a vain and haughty temper with elevated names, or situations, or callings, to which the fashion of the world has annexed precedency and distinction, but in which his disposition, without at all promoting his success, will serve both to multiply and exasperate his disappointments. In the same ■way, that is, with a view to the particular frame and tendency of the^ pupil's character, I would make choice of a public or pri- vate education. The reserved, timid, and indolent, will have their faculties called forth and their nerves invigorated by a pub- lic education. Youths of strong spirits and passions will be safer in a private education. At our public schools, as far as I have observed, more literature is acquired, and more vice ; quick parts are cultivated, siovv ones are neglected. Under private tuition, a moderate proficiency in juvenile learning is seldoiri exceeded, but oftener attained.

m

CHAPTER X.

THE RIGHTS OF PARENTS.

THE Rights of Parents result from their duties. If it be the duty of a parent to educate his children, to form them for a life of usefulness and virtue, to provide for them situations needful for their subsistence and suited to their circumstances, and to prepare them for those situations ; he has a right to such author- ity, and in support of that authority to exercise such disipline, as may be necessary for these purposes. The law of nature ac- knowledges no other foundation of a parent's right over his chil- dren, beside his duty towards them ; (I speak now of such rights as may be enforced by coercion.) This relation confers no'

RlGtlTS OF PARENTS. 22£i

jproperty in their persoiiSj or natural dominion orer tliera, as is Commonly supposed.

Since it is, in general, necessary to determine the destination of children, before they are capable of judging of their own happiness, parents have a right to elect professions for them.

As the mother herself owes obedience to the father, her author- ity must submit to his. In a competition, therefore, of commands, the father is to be oboyed. In case of the death of either, the authority, as well as duty of both parents, devolves upon the survivoro

These rights always following the duty, belong likewise to guardians ; and so much of them as is delegated by the parents 5r guardians belongs to tutors, schoolmasters, See.

From this principle, "that the rights of parents result from "their duty," it follows, (hat parents have no natural right over the lives of their children, as was absurdly allowed to Roman fathers ; nor anV to exercise unprofitable severities ; nor to com- mand the comission of crimes : for these rights can never be wanted for the purposes of a parent's duty.

Nor, for the same reason, have parents any right to sell their children into slavery* Upon which, by the way, we may ob- serve, that the children of slaves are not, by the law of nature, born slaves ; for, as the master's right is derived to him through the parent, it can never be greater than the parent's own.

Hence also it appears, that parents not only pervert, but ex- ceed, their just authority, when they consult their own ambi- tion, interest, or prcji/idice, at the manifest expense of their children's happiness. Of which abuse of parental power, the following are instances : the shutting up of daughters and young- er sons in nunneries and monasteries, in order to preserve en- tire the estate and dignity of the family ; or the using of any arts, either of kindness or unkindness, to induce them to make choice of this way of life themselves ; or, in countries where the clergy are prohibited from marriage, putting .sons into the church for the same end, who are never likely either tc • 29

t

22G DUTY OF CHILDREN.

do or receive any good in it sufficient to compensate for this sacrifice ; the urging of children to marriages from vvhicli they arc averse, with the view of exalting or enriching the family, or for the sake of connecting estates, parties, or interests ; or the opposing of a marriage, in which the child would probably find his happiness, from a motive of pride or avarice, of family hostility, or personal pique.

CHAPTER XI.

THE DUTY OF CHILDREN.

THE Duty of Children may be considered,

I. During childhood.

II. After they have attained to manhood, but continue ia their father's family.

III. After they have attained to manhood, and have left their father's family.

I. During Childhood.

Children must be supposed to have attained to some degree of discretion before they are capable of any duty. There is an interval of eight or nine years between the dawning and the maturity of reason, in which it is necessary to subject the incli- nation of children to many restraints, and direct their applica- tion to many employments, of the tendency and use of which they cannot judge ; for which cause, the submission of children during this period must be ready and implicit, with an excep- tion, however, of an}' manifest crime which may be commanded them.

II. ^fter they have attained to manhood, but continue in their father'' s family .

If children, when they are grown up, voluntarily continue meiEbcrs of their father's family, they are bound, beside the

DUTY OF CHILDREN. 227

general duty of gratitude to their parents, to observe such regu- lations of the family as the father shall appoint ; contribute their labour to its support, if required ; and confine themselves to such expenses as he shall allow. The obligation would be the same if they were admitted into any other family, or re- ceived support from any other hand.

lU. After they have attained to manhood, and have left their father'' s family.

In this state of the relation, the duty to parents is simply tha duty of gratitude ; not different in kind from that which we owe to any other benefactor ; in degree, just so much exceeding oth- er obligations, by how much a parent has been a greater bene- factor than any other friend. The services and attentions by v/hich filial gratitude may be ^testified, can -be comprised with- in no enumeration. It will show itself in compliances with the will of the parents, however contrary to the child's own taste or judgment, provided it be neither criminal, nor totally inconsist- ent with his happiness ; in a constant endeavour to promote their enjoyments, prevent their wishes, and soften their anxieties, in small matters as well as in great ; in assisting them in their busi- ness ; in contributing to their support, ease, or better accommo- dation, when their circumstances require it : in affording them our company, in preference to more amusing engagements ; in waiting upon their sickness or decrepitude ; in bearing with the infirmities of their health or temper, with the peevishness and complaints, the unfashionable, negligent, austere manners, and offensive habits, v/hich often attend upon advanced years ; for, where must old age find indulgence, if it do not meet with it in the piety and partiality of children ?

The most serious contentions between parents and their chil- dren, are those commonly which relate to marriage, or to the choice of a profession.

A parent has, in no case, a right to destroy his child's happi- ness. If it be true, therefore, that there exist such personal nnd exclusive attachments between individuals of different sexes, thaf.

228 DUTY OF CHILDREN.

the possession of a particular man ©r woman in marriage be real- ly necessary to the child's happiness ; or, if it be true, that an aversion to a particular profession may be involuntary and un- fconquerable ; then it will follow, that parents, where this is the case, ought not to urge their authority, and that the child is not bound to obey it. - The point is, to discover how far, in any particular instance, this is the case. Whether the fondness of lovers ever continues with such intensity, and so long, that the success of their desires constitutes, or the disappointment affects, any considerable por- tion of their happiness, compared with that of their whole life, it is difficult to determine ; but there can be no difficulty in pro- nouncing, that not one half of those attachmentc, which young people conceive with so much haste and passion, are of this sort. I believe it also to be true, that there are few aversions to a pro- fession, which resolution, perseverance, activity in going about the duty of it, and, above all, despair of changing, will not sub- due ; yet there are some such. Wherefore, a child who re- spects his parent's judgment, and is, as he ought to be, tender of his happiness, owes, at least, so much deference to his will, as to try fairly and faithfully, in one rase, whether time and absence will not quench his afl'ection ; and, in the other, whether a long- er continuance in His profession may not reconcile him to it, The whote depends , upon the experiment being made on the child's part with sincerity, and not merely with a design of com- passing his purpose at last, by means of a simulated and tempor rary compliance. It is the nature of love and hatred, and of all violent affections, to delude the mind with a persuasion that we fhall always continue to feel them as we feel them at present j we cannot conceive that they will either change or cease. Ex- perience of similar or greater changes io ourselves, or a habit of giving credit to what opr parents, or tutors, or books teach us, iitjpnay control this persuasion, otherwise it renders youth very un- jraclable ; for they see clearly and truly that it is impossible jfipy sbonlil Ijr happy undp r the circumstances propps(?d to them^

DUTY OF CHILDREN. 229

ifl their- present state of raind. After a sincere but ineffectual endeavour, by the child, to accommodate h'is inclination to his parent's pleasure, he ought not to suffer in his parent's affection, or in his fortunes. The parent, when he has reasonable proof of this, should acquiesce ; at all events, the child is then at liberty to provide for his own happiness.

Parents have no right to urge their children upon marriages to ivhich they are averse ; nor ought, in any shape, to resent the children's disobedience to such commands. This is a different case from opposing a match of inclination, because the child's misery is a much more probable consequence ; it being easier to live without a person that we love, than with one whom we hate. Add to this, that compulsion in marriage necessarily leads to prevarication ; as the reluctant party promises an affection, which neither exists, nor is expected to take place ; and parens tal, like all human authority, ceases, at the point where obedi- ence becomes criminal.

In the above-mentioned, and in all contests between parents and children, it is the parent's duty to represent to the child the consequences of his conduct ; and it will be found his best poli- cy to represent them with fidelity. It is usual for parents to ex- aggerate these descriptions beyond probability, and by exagger^ ation to lose all credit with their children ; thus, in a great meas= ure, defeating their own end.

Parents are forbidden to interfere where a trust is reposed per^ tonally in the son, and where, consequently the son was expect-? ed, and by virtue of that expectation, is obliged to pursue his own judgment, and not that of any other ; as is the case with juv dicial magistrates in the execution of their office ; with members jof the legislature in their votes ; with electors, where preference is to be given to certain prescribed qualifications. The son may assist his own judgment by the advice of his father, or of any vvhom he chooses to consult ; but his own judgment, whether rt>j. proceed upon knowledge or authority, ought finally to detenninft '^^ hjs conduct;

230 DUTY OF CHILDREN.

il

The duty of children to their parents was thought worthy to be made the subject of one of the Ten Commandments ; and, as such, is recognized by Christ, together with the rest of the mor- al precepts of the Decalogue, in various places of the Gospel.

The same divine Teacher's sentiments concerning the relief of indigent parents, appear sufficiently from that manly and deser- ved indignation with which he reprehended the wretched casuis- try of the Jewish expositors, who, under the name o!" a tradition, had contrived a method of evading this duty, by converting, or pretending to convert, to the treasury of the temple, so much of their property as their distressed parent might be entitled by their law to demand.

Agreeably to this law of Nature and Christianity, children are, by the law of England, bound to support, as well their immedi- ate parents, as their grandfather and grandmother, or remoter an- cestors, who stand in need of support.

Obedience to parents is enjoined by St. Paul to the Ephesians : " Children, obey your parents in the Lord, for this is right ;" and to the Colossians : " Children, obey your parents in all "things, for this is well pleasing unto the Lord."*

By the Jewish law, disobedience to parents was in some ex- treme cases capital ; Deut. xxi, 18.

* Upon which two phrases, " this is right," and " for this is well pleas- ing onto the Lord," being used by St. Paul in a sense perfectly parallel, •we may observe, that moral rectitude, and couformity to the Divine will, were, in his appreheaaion, the same.

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■^

BOOK lY.

DUTIES TO OURSELVES.

THIS division of the subject is merely for the sske of method, by which the writer and the reader are equally assisted. To the subject itself it imports nothing ; for, the obligation of all du- tties being fundamentally the same, it matters little under what class or title any of them are considered. In strictness, there are (ew duties or crimes which terminate in a man's self ; and so far as other's are alfected by their operation, they have been treated of in some article of the preceding book. We have re- served to this head the rights of self-defence ; also the consider- ation oi drunkenness and suicide, as offences against that care of our faculties, and preservation of our persons, which we account duties, and call duties to ourselves.

CHAPTER I,

THE RIGHTS OF SELF-DEFENCE.

IT has been asserted, that in a slate of nature Ave might law- fully defend the most insignificant right, provided it were a per- fect determinate right, by any extremities which the obstinacy of the aggressor made necessary. Of this I doubt ; because I doubt whether the general rule be worth sustaining at such an ex- pense ; and because, apart from the general consequence of yield-

2jli RICH I'S OF feKLF-bEPENCfi.

ing to tlie attcinpt, it caiinut be contendf-cl to l^e for the aiigmertf-* ation of Iiuiwnn liajtpiiiess, that one man should lose his life, or d limb, rather than another a pennyworth of his property. Never- theless, perfect rights can only be distinguished by their value ; and it is impossible to ascertain the value at which the liberty of using extreme violence begins. The person attacked must bal- ance, as well as he can, between the general consequence of" yielding, and the particular efioct of resistance.

However, this right, if it exist in a state of nature, is suspend- ed by the establishment of civil society ; because thereby other remedies are provided against attacks upon our property, and because it is necessary to the peace and safety of the communi- ty, that the prevention, punishment, and redress of injuries, h& adjusted by public laws. Moreover, as the individual is assist- ed in the recovery of his right, or of a compensation for it, by the public strength, it is no less equitable than expedient, that he should submit to public arbitratii)n the manner, as Vvell as the measure, of the satisfaction which he is to obtain.

There is one case in which all extremities are justifiable ; namely, when our life is assaulted, and it becomes necessary for our preservation to kill the assailant. This is evident in a state of nature ; unless it can be shown, that we are bound to prefer the aggressor's life to our own, that is to say, to love our enemy better than ourselves, vvliich can never be a debt of justice, nor any where appears to be a duty of ciiarity. Nor is the case al- tered by our living in civil society ; because, bv the supposition, the laws of society cannot interpose to protect us, nor, by the nature of the case, compel restitution. This liberty is restrained to cases in which no other probable means of preserving our life remain, as night, calling for assistance, disarming the adversary, &c. The rule holds, whether the danger proceed from a volun- tary attack, as by an enemy, robber, or assassin ; or from an in- voluntary one, as by a madman, or person sinking in the water, and dragging us after him ; or where two persons are reduced to M- a situation in which one or both of them must perish ; as in a

'P

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RIGHTS OF SELF-DEFENCE. 23$

shipwreck, where two seize upon a plank, which will support only one ; although, to say the truth, these extreme cases, which happen seldom, and hardly, when they do happen, admit of mor* al agency, are scarcely worth mentioning, much less debating.

The instance which approaches the nearest to the preserva- tion of life, and which seems to justify the same extremities, is the defence of chastity.

In all other cases, it appears to me the safest to consider the taking away of life as authorized by the law of the land ; and the person who takes it away, as in the situation of a minister or executioner of the law.

In which view, homicide, in England, is justifiable :

1. To prevent the commission ot a crime, which, when com- mitted, v.^ould be punishable with death. Thus, it is lawful to shoot a highwayman, or one attempting to break into a house by night ; but not by day : which particular distinction, by a con- sent that is remarkable, obtained also in the Jewish law, as well as in the lawa both of Greece and Rome.

2. In necessary endeavours to carry the law into execution, as in suppressing riots, apprehending malefactors, preventing es- capes, &c.

I do not know that tlie law holds forth its authority to any ca- ses besides those which fall within one or other of the above de- scriptions ; or that, after the exception of immediate danger to life or chastity, the destruction of a human being can be innocent without that authority.

The rights of war ore not here taken into the account.

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254 DRUNKENNESS,

CHAPTER II.

DRUNKENNESS.

DRUNKENNESS is either actual or habitual ; just as it is one thing to be drunk, and another to be a drunkard. What we shall deliver upon the subject must principally be understood of a habit of intemperance ; although part of the guilt and danger described may be applicable to casual excesses ; and all of it, in a certain degree, forasmuch as every habit is only a repetition of single instances.

The mischief of drunkenness, from which we arc to compute the guilt of it, consists in the following bad eflfects : —

1. It betrays most constitutions either into extravagancies of anger, or sins of lewdness.

2. It disqualifies men for the duties of their station, both by the temporary disorder of their faculties, and at length by a con- stant incapacity and stupefaction.

3. It is attended with expenses, which can often be ill spared.

4. It is sure to occasion uneasiness to the family of the drunk- ard.

5. It shortens life.

To these consequences of drunkenness must be added, the pe- culiar danger and mischief of the example. Drunkenness is a social festive vice ; apt, beyond any vice I can mention, to draw in others by the example. The drinker collects his circle ; the circle naturally spreads ; of those who are drawn within it, many become the corrupters and centres of sets and circles of their own ; every one countenancing, and perhaps emulating the rest, till a whole neighborhood be infected from the contagion of a sin- gle example. This account is confirmed by what we often ob- serve of drunkenness, that it is a local vice, found to prevail in certain countries, in certain districts of a country, or in particular

DRUNKENNESS. 235

towns, without any reason to be given for the fashion, but that it had been introduced by some popular examples. With this ob- servation upon the spreading quality of drunkenness, let us con- nect a remark which belongs to the several evil effects above re- cited. The consequences of a vice, like the symptoms of a dis- ease, though they be all enumerated in the description, seldom all meet in the same subject. In the instance under considera- tion, the age and temperature of one drunkard may have little to fear from inflammations of lust or anger ; the fortune of a second may not be injured by the expense ; a third may have no fami- ly to be disquieted by his irregularities ; and a fourth may pos- sess a constitution fortified against the poison of strong liquors. But it, as we always ought to do, we comprehend within the con- sequences of our conduct the mischief and tendency of the exam- ple, the above circumstances, however fortunate for the individ- ual, will be found to vary the guilt of his intemperance less, probably, than he supposes. Although the waste of time and money may be of small importance to you, it may be of -the ut- most to some one or other whom your society corrupts. Repeat- ed or long continued excesses, which hurt not your health, may be fafal to your companion. Although you have neither wife, nor child, nor parent, to lament your absence from home, or ex- pect your return to it with terror, other famili-es, whose hus.bands and fathers have been invited to share in your ebriely, or encour- aged to imitate it, may justly lay their misery or ruin at your |door. This will hold good, whether the person seduced be se- duced immediately by you, or the vice be propagated from you to him through several intermediate examples. A moralist must assemble all these considerations, to judge truly of a vice, which usually meets with milder names and more indulgence than it deserves.

1 omit those outrages upon one another, and upon the peace and safety of the neighbourhood, in which drunken revels often end ; and also those deleterious and maniacal effects which stron*? liquors produce upon particular consiitulions ; because, in gene-

23G j^m DRUNKENNESS.

%*#

ral propositions concerning drunkenness, no consequences sliould be included, but what are constant enough to be generally ex- pected.

Drunkenness is repeatedly forbidden by St. Paul : " Be not " drunk with wine, wherein is excess." " Let us walk honest- " ly as in the day, not in rioting and drunkenness." " Be not " deceived : neither fornicators, nor drunkards, nor revilers, nor " extortioners, shall inherit the kingdom of God." Eph. v. 18 ; Rom. xiii. 13 ; 1 Cor. vi. 9, 10. The same apostle likewise condemns drunkenness, as peculiarly inconsistent with the Chris- tian profession : — " They that be drunken, are drunken in the " night : but let us who are of the day, be sober." 1 Thess. V. 7, 8. We are not concerned with the aigumerrt ; the Avurds amount to a jirohibition of drunkenness ; and tae authority is conclusive.

It is a question of some importance, how far drunkenness is an excuse for the crimes which the drunken person commits.

In the solution of this question, we will first suppose the drunken person to be altogether deprived of moral agency, that is to say of all reflection and foresight. In this condition^ it is evident that he is no more capable of guilt than a madmair^ al- though, like him, he may be extremely mischievous. The only guilt with which he is chargeable, was incurred at the time when he voluntarily brought himself into this situation. And as every man is responsible for the consequences which he foresaw-, or might have foreseen, and for no other, this guilt will be in pro-l portion to the probability of such consequences ensuing. From which principle results the following rule, viz. that the guilt of any action in a drunken man bears the same proportion to the guilt of the like action in a sober man, that the probability of its being the consequence of drunkenness bears to absolute certain- ty. By virtue of this rule, those vices which are thfe known ef- fects of drunkenness, either in general, or upon particular consti- tutions, are, in all, or in men of such constitutions, nearlyas crim- inal as if committed with all their faculties and senses about them.

DRUNKENNESS. 237

If the privation of reason be only partial, the guilt will be of a mixed nature. For so much of his self-government as the drunkard retains, he is as responsible then as at any other time. He is entitled to no abatement beyond the strict propor- tion in which his moral faculties are impaired. Now I call the guilt of the crime, if a sober man had committed it, the whole guilt. A person in the condition we describe, incurs part of this at the instant of perpetration ; and by bringing himself into this condition, he incured su h a fraction of the remaining part, as the danger of this consequence was of an integral certainty. For the sake of illustration, we are at liberty to suppose, that a man loses half his moral faculties by drunkenness : this leaving him but half his responsibility, he incurs, when he commits tlie action, half of the whole guilt. We will also suppose, that it was known beforehand that it was an even chance, or half a certain- ty, that this crime would follow his getting drunk. This makes him chargeable with half the remainder ; so that, altogether, he is responsible in three-fourths of the guilt which a sober man would have incurred by the same action, I do not mean that any real case can be reduced to numbers, or the calculation made with arithmetical precision ; but these are the piinciples, and this the rule, by which our general admeasurement of the guilt of such offences should be regulated.

The appetite for intoxicating liqours appears to me to be al- most always ac^-MiVetZ. One proof of which is, that it is apt to return only at particular times and places ; as after dinner, in the evening, on the market-day, at the market-town, in such a company, at such a tavern. And this may be the reason that, if a habit of drunkenness be ever overcome, it is upon some change of place, situation, company, or profession. A man sunk deep in a habit of drunkenness will, upon such occasions as these, when he finds himself loosened from the associations which held him fast, sometimes make a pltuige and get out. In a matter of such great importance, it is well worth while, where it is tolerably convenient, to change our habitation and society, for the sake of the experiment.

238 DRUxNKENNESi?.

Habits of drunkenness couiinonly take llieir rise ehher from a fondness for, and connexion with, some company, or some companion, already addicted to this practice ; which affords an almost irresistible invitation to take a share in the indulgences which tliose about us are enjoying with so much apparent relish and delight ; or from want of regular employment, which is sure to let in many superfluous cravings, and customs, and often this amongst the rest ; or, lastly, from grief, or fatigue, both which strongly solicit that relief which inebriating liquors ad- minister for the present, and furnish a specious excuse for com- plying with the inclination. But the habit, when once set in, is continued by different motives from those to which it owes its oT-igin. Persons addicted to excessive drinking, suffer, in (he intervals of sobriety, and near the return of their accustomed in- dulgence, a faintiiess and oppression circa prcccordia, whicli it exceeds the ordinary patience of human natuie to endure. This is usually relieved for a short time b}' a repetition of the same excess ; and to this relief, as to the removal of every long- continued pain, they who have once experienced it, are urged almost beyond the power of resistance. This is not all : as the liquor loses its stimulus, the dose must be increased, to reach the same pitch of elevation, or ease ; which increase propor- tionably accelerates the progress of all the maladies that drunk- enness brings on. Whoever reflects upon (he violence of the craving in the advanced stages of the habit, and the fatal ter- minaiion to which the gratification of it leads, will, the moment iie perceives the least tendency in himself of a growing inclina- tion to intemperance, collect his resolution to this point ; or (what perhaps he will find his best security) arm himself with .;ome peremptory rule, as to the limes and quantity of his in- dulgences. I own myself a .^riend to the laying down of rules to ourselves of this sort, and rigidly abiding by them. Tiiey may be exclaimed against as stiff, but they are often salutary. Indefinite resolutions of abstemiousness arc apt to yield to extra- ordiimry occasion ; and extraordinary occasions to occur per-

SUICIDE. 239

petually. Whereas, the stricter the rule is, the more tenacious we grow of it : and ninny a man will abstain rather than break his rule, who would not easily be brought to exercise the same mortification from higher motives. Not to mention, that when our rule is once known, we are provided with an answer to eve- ry importunity.

There is a difference, no doubt, between convivial intemper- ance, and thalsolitarysottishness which wails neither for compa- ny nor invitation. But the one, 1 am afraid, commonly ends in the other ; and this last is the basest degradation to which the faculties and dignity of human nature can be reduced.

CHAPTER III.

SUICIDE.

THERE is no subject in morality in which the consideration ai general consequences is more necessary than in this of suicide. Particular and extreme cases of suicide may be feigned and may happen, of which it would be diificult to assign the partic- ular harm, or demonstrate from that consideration alone the guilt; and these cases have chiefiy occasioned confusion and doubtfulness in the question ; albeit this is no more than what is sometimes true of the most acknowledged vices. I could pro- yiose many possible cases even of murder, which, if they were detached from the general rule, and governed by their own par- ticular consequences alone, it would be no easy undertaking to prove criminal.

The true cjuestion in the argument is no other than this : — May every man who pleases to destroy his life, innocently do so? Twist, limit, and distinguish the subject as you can, it will come at last to this question.

For, shall we say, that we are then only at liberty to commit

240 SUICIDE.

suicide, when we find our continuance in life become useless tu mankind ? Any one who pleases may make himself useless ; and melancholy minds are prone to think themselves useless, when they really are not so. Suppose a law were promulgated, allowing each private person to destroy every man he met, whose longer continuance in the world he judged to be useless; who would not condemn the latitude of such a rule ? who does not perceive that it amounts to a permission to commit murder at pleasure ? A similar rule, regulating the right over our own lives, would be capable of the same extension. Beside which, no one is use- less for the purpose of this plea, but he who has lost every ca- pacity and opportunity of being useful, together with the pos- sibility of recovering any degree of either; which is a state of such complete destitution and despair, as cannot, I believe, be predicated of any man living.

Or rather, shall we say that to depart voluntarily out of life, is lawful for those alone who leave none to lament their death ? If this consideration is to be taken into the account at all, the sub- ject of debate will be, not whether there are any to sorrow for us, but whether their sorrow for our death will exceed that which we should suder by continuing to live. Now, this is a compari- son of things so indeterminate in their nature, capable of so dif- ferent a judgment, and concerning which the judgment will differ so much, according to the state of the spirits, or the pressure of any present anxiety, that it would vary little, in hypochondria- cal constitutions, from an unqualified licence to commit suicide, whenever the distresses men felt, or fancied, rose high enough to overcome the pain and dread of death. Men are never tempted to destroy themselves but when under the oppression of some grievous uneasiness ; the restrictions of the rule, therefore, oughi to apply to these cases. But what eifect can we look for from a rule which proposes to weigh our own pain against that of anoth- er ; the misery that is felt, against that which is only conceived ; and in so corrupt a balance as the party's own distempered im- agination ?

SUICIDE. 241

In like manner, whatever other rule you assign, it will ulti- mately bring us to an indiscriminate toleration of suicide, in ail cases in which there is danger of its being committed. It re- mains, therefore, to inquire what would be the effect of such a toleration ? evidently, the loss of many lives to the community, of which some might be useful or important ; the affliction of man^ families, and the consternation of a/Z; for mankind must live in continual alarln for the fate of their friends and dearest relations, when the restraints of religion and morality are withdrawn ; when every disgust wliicli is powerful enough to tempt men to suicide, shall be deemed sufllcient to justify it ; and when the follies and vices, as well as the inevitable calamities, of human life, so often make existence a burthen.

A second consideration, and perfectly distinct from the former, is this : — By continuing in the world, and in the exercise of those virtues which remain within our power, we retain the opportuni- ty of meliorating our condition in a future state This argument, it is-true, does not in strictness prove suicide to be a crime ; but if it supply a motive to dissuade us from committing it, it amounts to much the same thing. Now, there is no condition in human life which is not capable of some virtue, active or passive. Eveo piety and resignation under the sufferings to which we are caRed, testify a trust and acquiescence in the Divine counsels, more ac- ceptable, perhaps, than the most prostrate devotion ; afford an edifying example to all who observe them ; and may hope for a recompense among the most arduous of human virtues. These qualities are always in the power of the miserable ; indeed of none but the miserable.

The two considerations above stated, belong to all cases of suicide whatever. Besides which general reasons, each case will be aggravated by its own proper and particular consequen- ces ; by the duties that are deserted ; by the claims that are de- frauded ; by the loss, affliction, or disgrace, which our death, or the manner of it, causes to our family, kindred, or friends ; by the occasion we give to many to suspect tbe sincerity of our 31

1242 ^UICIDt:.

moral and religious professions, and, together with ours, those of all others ; by the reproach we draw upon our order, calling, or Sect ; in a word, by a great variety of evil consequences attend- ing upon [leculiar situations, with some or other of which every actual case of suicide is chargeable.

I refrain from the common topics of " deserting our post," "throwing up our trust,'' "rushing uncalled into the presence of " our maker," with some others of the same sort, not because they are common^ (for that rather affords a presumption in their favour,) but because I do not perceive in them much argument to which an answer may not easily be given.

Hitherto we have pursued upon the subject the light of nature alone ; taking into the account, however, the expectation of a fu- ture existence, without which our reasoning upon tbis, as indeed all reasoning upon moral questions, is vain. We proceed to in- quire, whether any thing is to be met with in Scripture, which may add to the probability of the conclusions we have been en- deavouring to support ? And here I acknowledge, that there is to be found neither any express determination of the question, nor sufficient evidence to prove, that the case of suicide was in the contemplation of the law which prohibited murder. Any in- ference, therefore, which we deduce from Scripture, can be sus- tained only by construction and implication ; that is to say, al- though they who were authorized to instruct mankind, have not decided a question which never, so far as appears to us, came before them ; yet, I think, they have left enough to constitute a presumption how they would have decided it, had it been pro- posed or thought of.

What occurs to this purpose, is contained in the following ob- servations :

1. Human life is spoken of as a term assigned or prescribed to us : " Let us run with patience the race that is set before us." " I have linished my course." " That I may finish my course *"* with joy." " Ye have need of patience, that, after ye have " done the will of God, ye might receive the promises."— These

SUICIDE. 243

expressions appear to me inconsistent with the opinion, that we are at liberty to determine the duration of our lives for ourselves. If this were the case, with what propriety could life be called a race that is set before tis ; or, which is the same thing, " owr course ; " that is, the course set out or appointed to us ? The re- maining (juotation is equally strong : " That, after ye have done " the will of God, ye might receive the promises." The most natural meaning that can be given to the words, " after ye have " done the will of God," is, after ye have discharged the duties of life so long as God is pleased to continue you in it. Accord- ing to this interpretation, the text militates strongly against sui- cide ; and they who reject this paraphrase, vvilj please to pro- pose a Letter.

2. There is not one quality which Christ and his Apostles in- culcate upon their followers so often, or so earnestly, as that o\. patience under affliction. Now this virtue would have been in a great measure superseded, and the exhortations to it might have been spared, if the disciples of his religion had been at liberty to quit the world as soon as they grew weary of the ill usage which they received in it. When the evils of life pressed sore, they were to look forward to a "far more exceeding and eternal " weight of glory ;" they were to receive " them as the chasten- " ing of the Lord," as intimations of his care and love : by these and the like reflections they were to support and improve them- selves under their sufferings, but not a hint has any where esca- ped of seeking relief in a voluntary death. The following text, in particular, strongly combats all impatience of distress, of which the greatest is that v/hich prompts to acts of suicide : " Consid- " er him that endured such contradiction of sinners against him- " self, lest ye be wearied and faint in your minds." I would offer my comment upon this passage in these two queries ; first, .Whether a Christian convert, who had been impelled by the £ontinuance and urgency of his suflferings to destroy his own life, would not have been thought, by the author of this text, " to have *•'■ bfcen weary," '• (ohave fainted in his mind," tohavefallerj of

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from that example which is here proposed to tlie meditation of Christians in distress ? And yet, secondly, Whether such an act vvDuld not have been attended with all the circumstances of mit- igation which can excuse or extenuate suicide at this day ?

3. The conduct of the Apostles, and of the Christians of»thc apostolic age, affords no obscure indication of their sentiments upon this point. They lived, we are sure, in a confirmed per- suasion ot the existence, as well as of the happiness of a fu- ture state. They experienced in this world every extremity of external injury and distress. To die, was gain. The change which death brought with it was, in their expectation, infi- nitely beneficial. Yet it never, that we can find, entered into the intention of one of them to hasten this change by an act of suicide ; from which it is difficult to say what motive could have so universally withheld them, except an apprehension of some unlawfulness in the expedient.

Having stated what we have been able to collect in opposi- tion to the lawfulness of suicide, by way of direct proof, it seems unnecessary to open a separate controversy with all the arguments whicW are made use of to defend it ; which would only lead us into a repetition of what has been offered already. The following argument, however, being somewhat more artificial and imposing than the rest, as well as distinct from the gen- eral consideration of the subject, cannot so properly be passed over. If we deny to the individual a right over his own life, it seems impossible, it is said, to reconcile with the law of na- ture that right which the state claims and exercises over the lives of its subjects, when it ordains or inflicts capital punishments. For this right, like all other just authority in the state, can only be derived from the compact and virtual consent of the citizens which compose the state ; and it seems self-evident, if any principle in morality be so, that no one, by his consent, can transfer to another a right which he does not possess himself. It will be equally difficult to account for the power of the state fo commit its subjects to the dangers of war, and to expose theFr

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lives without scruple in the field of battle ; especially in offen- sive hostilities, in which the privileges of self-defence cannot be pleaded with any appearance of truth : and still more difficult to explain, how, in such, or in any circumstances, prodigality of life can be a virtue, if the preservation of it be a duty of our nature.

This whole reasoning sets out from one error, namely, that the state acquires its right over the life of the subject from the subject's own consent, as a part of what originally and person- ally belonged to himself, and which he has made over to his^ governors. The truth is, the state derives this right neithei* from the consent of the subject, nor through the medium of that consent ; but, as I may say, immediately from the donation of the Deity. Finding that such a power in the sovereign of the community is expedient, if not necessary, for the community itself, it is justly presumed to be the will of God, that the sove- reign should possess and excercise it. It is this presumption which constitutes the right ; it is the same indeed which con- ,; stitutes every other ; and if there were the like reasons to au- > thorize the presumption in the case of private persons, suicide ! would be as justifiable as war, or capital executions. But, until it can be shown that the power over human life may be conver- ted to the same advantage in the hands of individuals over their own, as in those of the state over the lives of its subjects, and that it may be entrusted with equal safety to both, there is no ', room for arguing, from the existence of such ;i right in the lat- ter, to the toleration of it in the former.

BOOK V.

DUTIES TOWARDS GOD.

CHAPTER 1.

DIVISION OF THESE DUTIES.

IN one sense, cve}y duty is a duty towards God, since it is his will wliich makes it a duty ; but there are some duties of which God is the object, as well as the author ; and these are peculi- arly, and in a more appropriated sense, called duties towards God.

That silent piety, which consists in a habit of tracing out the Creator's wisdom and goodness' in the objects around us, or in the history of his dispensations ; or of referring the blessings we enjoy to his bounty, and of resorting to his succour in our dis- tress ; may possibly be more acceptable to the Deity than any visible expressions of devotion whatever. Yet these latter (which although, they irtay be excelled, are not superseded by the former) compose the only part of the subject which admits of direction or disquisition from a moralist.

Our duty towards God, so far as it is external, is divided into ■worship and reverence. God is the immediate object of both ; and the difl'erence between them is, that the one consists in aC' tion, the other in forbearance. When we go to church on the

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Lord's day, led thither by a sense of duty towards God, we perform an act of worship ; when we rest in a journey upon that day, from the same motive, we discharge a duty of rever- ence.

Divine worship is made up of adoration, thanksgiving, and prayer. — But as what we have to offer concerning the two for- mer may be observed of prayer, we shall make that the title of the following chaptel'S, and the direct subject of our consider- ation.

CHAPTER II.

OF THE DUTY AND OF THE EFFICACY OF PRAYER, SO FAR AS THE SAME APPEAR FROM THE LIGHT OF NA- TURE. ^

WHEN one man desires to obtain any thing of another, he betakes himself to entreaty ; and this may be observed of mankind in all ages and countries of the world. Now what is universal, may be called' natural ; and it seems probable that God, as our supreme governor, should expect that towards him- self, which by a natural impulse, or by the irresistible order of our constitution, he has prompted us to pay to every other be- ing on whom we depend.

The same may be said of thanksgiving.

Again, prayer is necessary to keep up in the minds of man- kind a sense of God's agency in the universe and of their de- pendency upon him.

But, after all, the duty of prayer depends upon its efficacy: for I confess myself unable to conceive, how any man can pray, or be obliged to pray, who expects nothing from his prayer; but who is persuaded, at the time he utters his request, that it cannot possibly produre the smallest impression upon the Be-

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ing to whom it i.s addressed, or advantage to himself. Now the efficacj of prayer imports that we obtain something in conse- quence of praying, which we should not have received without prayer ; against all expectation of which, the following objec- tion has been often and seriously alleged : — " If it be most agrcea- "'ble to perfect wisdom and justice that we should receive what " we desire, God, as perfectly wise and just, will give it to us *' without asking ; if it be not agreeable to these attributes of " his nature, our entreaties cannot move him to give it us, and " it were impious to " expect they should." In fewer words, thus ; " If what we request be fit for us, we shall have it with- " out praying ; if it be not fit for us, we cannot obtain it by " praying." This objection admits but of one answer, namely, that ifmay be agreeable to perfect wisdom to grant that to our prayers, which it would not have been agreeable to the same wisdom to have given us without praying for. But what virtue, you ril! ask, is there in prayer, which should make a favor consistent with wisdom, which would not have been so without it? To this question, which contains the whole difficulty atten- ding the subject, the following possibilities are ofifered 'in reply : —

1. A favor granted to prayer may be more apt, on that very account, to produce good effects upon the person obliged. It may hold in the Divine bounty, what experience has raised into a proverb in the collation of human benefits, that what is ob- tained without asking, is oftentimes received without gratitude.

2. It may be consistent with the wisdom of the Deity to with- hold his favors till they be asked for, as an expedient to en- courage devotion in his rational creation, in order thereby to keep up and circulate a knowledge and sense of their depen- dency upon him.

3. Prayer has a natural tendency to amend the petitioner himself; and thus to bring him within the rules which the wis- dom of the Deity has prescribed to the dispensation of his fa- vors.

OF PRAYEIl. ^4gi

If these, or any other assignable suppositions, serve to remove the apparent repugnancy between the success of prayer and the charactes of the Deity, it is enough ; for the question with the petitioner is not fioiii which, out of many motives, God may grant his petition, or in what particular manner he is moved by the supplications of his creatures ; but whether it be consistent with his nature to be moved at all, and whether there be any conceivable motives which may dispose the divine will to grant the petitioner what he wants, in consequence of his praying for it. It is sutBcient for the petitioner, that he gain his end. It is not necessary to devotion, perhaps not very consistent with it, that the circuit of causes, by which his prayers prevail, should be known to the petitioner, nnich less that they should be pres- ent to his imagination at the time. All that is necessary is, that there be no impossibility apprehended in the matter.

Thus much must be conceded to the objection ; that prayer cannot reasonably be offered to God with all the same views, with which we oftentimes address our entreaties to men, (views which are not commonly or easily separated from it,) viz. to in- form them of our wartts or desires ; to tease them out by impof tuJiity ; to work upon their indolence or compassion, to persuade them to do what they ought to have done before; or ought not t® do at all.

But suppose there existed a prince, who was known by his subjects to act, of his own accord, always and invariably for the best ; the situation of a petitioner, who solicited a favour or pardon from >:i<d\ a prince, would sufficiently resemble ours ; and the question with him, as with us, would be, whether, the character of the prince being considered, there remained any chance that he should obtain from him by prayer, what he would t\oi have received without it. I do not conceive that the charac- ter of such a prince would necessarily exclude the eflect of his subject's prayer ; for, when that prince reflected, that the ear- nestness and humility of the supplication had generated in the suppliant a frame of mind, upo^jr which the pardon or favour aske^l.

25(7 OF PRAYER.

would produce a permanent and active sense of gratitude ; that the grantins; of it to prayer would put others upon praying to liiin, and by that means preserve the love and submission of his subjects, upon which love and submission their OAvn happiness, as well as his glory depended ; that, beside that the memory of the particular kindness wouKl be heightened and prolonged by the anxiety with which it had been sued for, prayer had in other respects so disposed and prepared the mind of the petitioner, as to render capable of future services him who before was un(}ual- ified for any : might not that prince, I say, although he proceed- ed upon no other considerations than the strict rectitude and ex- pediency of the measure, grant a favour or pardon to this man. which he did not grant to another, who was too proud, too la/y, or too busy, too indifferent whether he received it or not, or too insensible of the sovereign's absolute power to give or to with- hold it, ever to ask for it ? or even to the philosopher, who, from an opinion of the Iruitlessness of all addresses to a prince of the character which he had formed to himself, refused in his own example, and discouraged in others, all outward returns of grati- tude, acknowledgments of duty, or application to the sovereign's mercy, or bounty ; the disuse of which, (seertig affections do not long sti!>sist which are never expressed,) was followed by a de- cay of loyalty and zeal amongst his subjects, and threatened to end in a iorgetfulness of his rights, and a contempt of his author- ity ? These, together with other assignable considerations, and some pei;haps inscrutable, and even inconceivable by the persons upon whom his will was to be exercised, might pass in the mind of the prince, and move h\S counsels ; whilst nothing, in the mean time, dwelt in the petitioner's thoughts, but a sense of his own grief and wants ; of the power and goodness from which alone he Was to look for relief; and of his obligation to endeav- our, by future obedience, to render that person propitious to his happiness, in whose hands, and at the disposal of whose mercy, he found himself to be. ,

The objection to prayer supposes, that a perfectly wise being .ftiuit necessarily be inexorable j but where is the proof, that in-

OF PRAYER. 26 i

/txotahility is any part of perfect wisdom ; especially of that wis- Aiom wliicii is explained to consist in bringing about the most Jjencficial ends by the wisest means ?

The objection likewise assumes another principle, which is attended with considerable difficulty and obscurity, namely, that upon every occasion there is one, and only one mode of action for the best ; and that the divine will is necessarily determined and confined to that mode ; both which positions presume a knowledge of universal nature much beyond what we are capa- ble of attaining. Indeed, when we apply to the divine nature such expressions as these, " God must always do what is right," " God cannot, from the moral perfection and necessity of his na- " ture, act otherwise than for the best," we ought to apply them with much indeterminateness and reserve ; or rather, -we ought to confess, that there is something in the subject out of tfie reach of our apprehension ; for, to our apprehension, fo be imder a ne- cessity of acting according to any rule, is inconsistent with free agency ; and it makes no difference, which we can understand, whether -the necessity be internal or external, or that the rule is ■the rule of perfect rectitude.

But efficacy is ascribed to prayer, without the proof, we are told, which can alone in such a sul)ject produce conviction, — the confirmation of experience. Concerning the appeal to experi- ence, I shall content myself with this remark, that if prayer were suffered to disturb the order of second causes appointed in the ■universe too much, or to produce its effects with the same regu- larity that they do, it would introdiice a change into human af- fairs, which in some important respects, would be evidently foi the worse. Who, for example, would labour, if his necessities could be supplied with equal certainty by prayer? How few would contain, within any bounds of moderation, those passions and pleasures, which at present are checked only by disease, or the dread of it, if prayer would infallibly restore health ? Ie short, if the efficacy of prayer were so constant and observable j^s .to be relied upon beforehand, it is ea.'iy to foresee that tlj;;

262 or PRAYER.

conduct of mankind would, in proportion to that reliance, become careless and disorderly. It is possible, in the nature of tilings, that our prayers may, in many instances, be efficacious, and yet our experience of their efficacy be dubious and obscure. There- fore, if the light of nature instruct us by any other arguments to hope for effect from prayer ; still more, if the Scriptures author- ize these hopes by promises of acceptance ; it seems not a sut- fficient reason for calling in question the reality of such effects, that our observations of them are ambiguous ; cs|)ecially since it appears probable, that this very ambiguity is necessary to the happiness and safety of human life.

But some, whose objections do not exclude all prayer, are of' fended with the mode of prayer in use amongst us, and with ma- ny of the subjects which are almost universally introduced into public worship, and recommended to private devotion. To pray for particular favours by name, is to dictate, it has been said, to divine wisdom and goodness : to intercede for others, especially for whole nations and empires, is still worse ; it is to presume that we possess such an interest with the Deity, as to be able, by our applications, to bend the most important of his counsels ; and that the happiness of others, and even the prosperity of whole communities, is to depend upon this interest, and upon our choice. Now, how unequal soever our knowledge of the divine economy may be to the solution of this difficulty, which may require a comprehension of the entire plan, and of all the ends of God's moral government, to explain satisfiictoriiy, we can understand one thing concerning it, that it is, after all, nothing more than the making of one man the instrument of happiness and misery to another ; which is perfectly of a piece with the course and order that obtain, and which wc must believe were intended to obtain., in human affairs. Whj- may we not be assisted by the prayers of other men, who are beholden for our support to their labour ? Why may not our happiness be made in some cases to depend upon the intercession, as it certainly does in many upon the good offices, of our neighbours ? The happiness and misery of

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great numbers we see oftentimes at the disposal of one man's choice, or liable to be much affected by his conduct ; what greater diflicultj^ is there in supposing, that the prayers of an in- dividual may avert a calamity from multitudes, or be accepted to the benefit of whole communities ?

CHAPTER III.

OF THE DUTY AND EFFICACY OF PRAYER, AS REPRE- SENTED IN SCRIPTURE.

THE reader will have observed, that the reflections stated in the preceding chapter, whatever truth and weight they may be allowed to contain, rise many of them no higher than to nega- tive arguments in favour of the propriety of addressing prayer to God. To prove that the efficacy of prayers is not inconsistent with the attributes of the Deity, does not prove that prayers are actually efficacious : and in the want of that unequivocal testi* mony which experience alone could afford to this point, (but >vhich we do not possess, and have seen good reason why we are not to expect,) the light of nature leaves us to controverted prob-i' abilities, drawn from the impulse by which mankind have been almost universally prompted to devotion, and from some benefit cial purposes, which, it is conceived, may be better answered by the audience of prayer than by any other mode of communi- cating the same blessings. The revelations which we deem au- thentic, completely supply this defect of natural religion. They require praj^er to God as a duty ; and they contain positive as- surances of its eflacacy and acceptance. We could have no rea- sonable motive for the exercise of prayer, without believing that it may avail to the relief of our wants This belief can only be founded, either in a sensible experience of the effect of prayer, 9V in promises of acceptance signified by divine authority. Our

254 OF PRAYER.

knowledge noulil liavc come to us in llie former way, less capa- ble, indeed, of doubt, but subjected to the abuses and inconve- niences briefly described above ; in the latter way, that i.>, by authorizing signification? of God's general disposition to hear and answer the devout supplications of his creatures, we are encour- aged to pray, but not to place such a dependence ujion prayer, as might relax other obligations, or confound the order of events and human expectations.

The Scriptures not only affirm the propriety of prayer in gen- eral, but furnish precepts or examples which justify some topics and modes of prayer that have been thought exceptionable. And as the whole subject rests so much upon the foundation of Scripture, I shall put down at length, texts applicable to the five following heads : to the duty and efficacy of prayer in general ; of prayer for particular favours by name; for public national blessings ; of intercession for others ; of the repetition of unsuc- cessful prayers.

1. Texts enjoining prayer in general : " Ask, and it shall be "given you ; seek, and ye shall find. — If ye, being evil, know " how to give good gifts unto your children, bow much more " shall your Father, which is in heaven, give good things to them " that ask him ?'' — " Watch ye, therefore, and pray always, that *' ye may be accounted worthy to escape all those things that " shall come to pass, and to stand before the Son of Man." — " Serving the Lord, rejoicing in hope, patient in tribulation, con- " tinning {nstant in prayer.^'' — "Be careful for nothing, but in " every thing by prayer and supplication, with thanksgiving, let *' your requests be made known unto God." — " I will, therefore, " that men pray every rchcre, lifting up holy hands without wrath ^ and doubting." — '■'■ Pray •jcithovt qeasing." Matt. vii. 7, 11 ; Luke, xxi. 36 ; Rom. xii. 12 ; Philip, iv. 6 ; 1 Thess. v. 17 ; 1 Tim. ii. 8. Add to these, that Christ's reproof of the ostenta- tion and prolixity of pharisaical prayers, and his recommenda- tion to his disciples of retirement and simplicity in theirs, togeth- er with bis dictating a particular form of prayer, all presuppose prayer to be an acceptable and availins service.

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t. Examples of prayer for particular favours by name : "For •' this thing (to wit, some bodily infirmity, which he calls ' a " thorn given him in the flesh') I besought the Lord thrice, that " it might depart from me." — " Night and day praying exceed- " ingly, that we might see your face, and perfect that which is " lacking in your faith." 2 Cor. xii. 8 ; 1 Thess. iii. 10.

3. Directions to pray for national or public blessings : " Pray ■'■for the peace (f Jerusalem.'''' — " Ask ye of the Lord rain, in " the time of the latter rain ; so the Lord shall make bright '• clouds, and give them showers of rain, to every one grass in " the field." — " 1 exhort, therefore, that first of all, supplications, *' prayers, intercessions, and giving of thanks, be made for all " men ; for kings, and for f?ll that are in authority, that we may " lead a quiet and peaceable life, in all godliness and honesty ; " for this is good and acceptable in the sight of God our Saviour." Psalm cxxii. 6 ; Zech. x. 1 ; 1 Tim. ii. 1, 2, 3.

4. Examples of intercession, and exhortations to intercede for others : — " And Moses besought the Lord his God, and said, " Lord, why doth thy wratli wax hot against thy people ? Re- *' meml)er Abraham, Isaac, and Israel, thy servants. And the " Lord repented of the evil which he thought to do unto his peo- '• pie." — " Peter therefore was kept in prison, but prayer was •' made without ceasing of the Church unto God ybr/»m." — " For " God is my witness, that without ceasing I viake mention of you " always in my prayers.'''' — " Now I beseech you, brethren, for *' the Lord .Jesus Christ's sake, and for the love of the Spirit, thai " ye strive together with me in your prayers for me.'''' — " Con- •' fess your faults one to another, and pray one for another, that " ye may be healed : the effectual fervent prayer of a righteous ■' man availeth much." Exod. xxxii. 11; Acts, xii. 5; Rom. }, ^. XV. 30 ; James, v. IG.

5. Declarations and examples authorizing the repetition of un- successful prayers : " And he spoke a parable unto them, to " this end, that men ought always to pray, and not to fiiint." — • "' And he left them, anci \v'ent away again, and prayed the third

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26C OF PRAYER.

" time, suijing the some ivords.'" — " For this tiling I besought the " Lord thrice, that it might depart from me." Luke, xviii. 1 ; Matt. xxvi. 44. 2 Cor. xii. 8.*

CHAPTER IV.

OF PRIVATE PRAYER, FAMILY PRAYER, AND PUBLIC WORSHIP.

CONCERNING these three descriptions of devotion, it is first of all to he observed, that thej have each their separate and peculiar use ; and therefore, that the exercise of one spe- cies of worship, however regular it be, does not supersede or dispense with the obligation of either of the other two.

L Private prayer is recommended for the sake of the fol- lowing advantages :

Private wants cannot always be raade the subject of public prayer ; but whatever reason there is for praying at all, there is the same for making the sore and grief of each man's own heart the business of his application to God. This must be the office of private exercises of devotion, being imperfectly, if at all< practicable in any other.

Private prayer is generally more hearty and earnest than the share we are capable of taking in joint acts of worship ; because

* The reformed churches of Christendom, sticking close in this article to their guide, have laid aside prayers for the dead, as authorized by no precept or precedent found in Scripture. For the same reason they prop- erly reject the invocation of saints ; as also, because such invocations sup- pose, in the saints whom they address, a knowledge which can perceive what passes in different regions of the earth at the same time. And they deem it too much to take for granted, without the smallest intimatfon of such a thing in Scripture, that any created being possesses a faculty little short of that omniscience and omnipresence which they ascribe to the Deity.

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it affords leisure and opportunity for the circumstantial recollec- tion of those personal wants, by the remembrance and ideas ot which the warmth and earnestness of prayer is chiefly excited.

Private prayer, in proportion as it is usually accompanied with more actual thought and reflection uf the petitioner's own, has a greater tendency than other modes of devotion to revive and fasten upon the mind the general impressions of religion. Soli- tude powerfully assists this effect. When a man finds himself alone in communication with his Creator, his imagination becomes filled with a conflux of awful ideas concerning the universal agen- cy^ and invisible presence, of that Being ; concerning what is likely to become of himself; and of the superlative importance of j)roviding for the happiness of his future existence, by endea- vours to please him, vfho is the arbiter of his de<tiny ; reflections^ which, whenever they gain admittance, for a season overwhelm all others ; and leave, when they depart, a solemnity u])on the/ thoughts, that will seldom fail, in some degree, to effect the con- duct of life.

Private prayer, thus recommended by its own propriety, and by advantages not attainable in any form of religious communion, receives a superior sanction from the authority and example of Christ : " When thou prayest, enter into thy closet ; and when " thou hast shut thy door, pray to thy Father, which is in secret ; " and thy Father, which seeth in secret, shall reward th^^e onen- " !y." — " And when he had sent the multitudes away, he went •• up into a mountain apart to pray.'''' Matt. vi. G. xiv. 23.

H. Family prayer.

The peculiar use of family piety consisfs in its influence upon servants, and the yoiJTng members of a family, who want sufficient seriousness andreflection to retire of their own accord to the ex- ercise of private devotion, and whose attention y'o4^-(^i)not easily command in public worship. The example also and 'authority of a father and master act in this way with the greatest force ; for his private prayers, to which his children and servants are not witnesses, act not at all upon them as examples ; and his at- 33

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tendance upon public worship they will readily impute to fnsh- ion, to a care to preserve appearances, to a concern for decency and character, and to many motives besides a sense of duty to God. Add to tliis, tliat forms of public worship in ]iroportioii as they are more comprehensive, are always less interesting than family prayers ; and that the ardour of devotion is better sup- ported, and the sympathy more easily propagated, through a small assembly connected by the affections of domestic society, than in the presence of a mixed congregation.

III. Puhlic worship.

If the worship of God be a duty of religion, pubTc worship is a necessary institution ; forasmuch as, without it, the greater part of mankind would exercise no religous worship at all.

These assemblies afford also, at the same time, opportunities for moral and religious instruction to those who otherwise would receive none. In all Protestant, and in most Christian countries the elements of natural religion, and the important parts of the evangelic history, are familiar to the lowest of the peo- ple. This competent degree and general diffusion of religious knowledge amongst all orders of Christians, which will appear a great thing when compared with the intellectual condition of bar- barous nations, can fairly, I think, be ascribed to no other cause than the regular establishment of assemblies for divine worship ; in which, either portions of Scripture are recited and explained, or the principles of Christian erudition are so constantly taught in sermons, incorporated with liturgies, or expressed in extem- pore prayer, as to in>print, by the wry repetition, some know- ledge and memory of these subjects upon the most unqualificil and careless hearer.

The two reasons above stated, bind all the members of a com- munity to uphold public worship by their pr.esence and example, although the helps and opportunities which it atTords may not he necessary to the devotion or edification of all ; and to some may be useless : for it is easily foreseen, how soon religious assem- blies would fall into contempt and disuse, if that class of mankind

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who are above seeking instruction in them, and want not that their own piety should be assisted by either forms or society in devotion, were to withdraw their attendance ; especially when it is considered, that ail vvho please, are at liberty to rank them.- selves of this class. This argument meets the following, and the only serious apology that is made for the absenting of ourselves from public worship. " Surely I may be excused trom going to " church, so long as I pray at home ; and have no reason to " doubt but that my prayers are equally acceptable and effica- " cious in my closet as in a cathedral ; still less can I think my- ^' self obliged to sit out a tedious sermon, in order to hear what " is known already, or better learnt from books, or suggested by ■■' meditation." They, whose qualifications and habits best sup- ply to t^homsehes all the effect of public ordinances, will be the last to prefer this excuse, when they reflect upon Ihe general consequence of setting up such an exemption, as well as the turn. which is sure to be given in the neighbourhood to their absence from public worship. You stay from church, to employ the Sabbath at home in exercises and studies suited to its proper bu- siness : your next neighbor stays from church, to spend the se- venth day less religiously than he passed any of the six, in a sieepy, stupid rest, or at some rendezvous of drunkenness and debauchery, and yet thinks that he is only imitating you, be- cause you both agree in not going to church. The same consid- eratio)! should overrule many small scruples concerning the rigo- rous propriety of some things which may be contained in the fonns, or admitted into the administration of the public worship of our communion : foi', it seems impossible that even " two oi " three should be gathered together" in any act of social worship^ if eacii one require from the rest an implicit submission to his objections, and if no man will attend upon a religious service which in any point contradicts his opinion of truth, or falls short of his ideas of perfection.

Beside the direct necessity of public worship to the greater part of every Christinn community, (supposing worship at ^11 1*^

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/

be a Christian duly,) there are other valuable advantage* grow- ing out of the use of religious assen)blies, without being design- ed in the institution, or thought of by the individuals who com- pose them.

1. Joining in prayer and praises to their common Creator and governor, has a sensible tendency to unite mankind togeth- er, and to cherish and enlarge the generous affections.

So many pathetic reflections are awakened by every exercise of social devotion, that nio?t men, I believe, carry away trom public worship a better temper towards the rest of mankind, than they brought with them. Sprung from the same extrac- tion, preparing together for the period of all worldly distinctions, reminded of their mutual infirmities and common dependency, imploring and receiving support and supplies from the same great source of power .and bounty, having all one interest to se- cure, one Lord to serve, one judgment, the supreme object to all their hopes and fcais, to look towards ; it is hardly possible, in this position, to behold mankind as strangers, competitors, or enemies ; or not to regard them as children of the same family, assembled before their common parent, and with some portion of the tendtrness which belongs to the most endearing of our domestic relations. It is not to be expected, that any single effect of this kind should be considerable or lasting ; but the frequent return of such sentiments as the presence of a devout congregation naturally suggests, will gradually melt down the ruggedness of many unkind passions, and may generate in time a permanent and productive benevolence.

2. Assemblies for the purpose of divine worship, })lacing men under impressions by which they are taught to consider their relation to the Deity, and to contemplate those around them with a view to that relation, force upon their thoughts the natural equality of the human species, and thereby promote hu- mility and condescension in the highest orders of the communi- ty, and inspire the lowest with a sense of their rights. The distinctions of civil life arc almost always insisted upon too

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much, and urged too far. Whatever, therefore, conduces to restore the level, by qualifying the dispositions which grow out of great elevation or depression of rank, improves the character on both sides. Nou^ things are made to appear little, by being placed beside what is great. In which manner, superiorities, which occupy the whole field of the imagination, will vanish or shrink to their proper dirainutiveness, when compared with the distance by which even the highest of men are removed from the Supreme Being ; and this comparison is naturally introdu- ced by all acts of joint worship. If ever the poor man holds up his head, it is at church : if ever the rich man views him with respect it is there ; and both will be the better, and the public profited, the oftcner they meet in a situation, in which the con- sciousness of dignity in the one is tempered and mitigated, and the spirit of the other erected and confirmed. We recommend nothing adverse to subordinations which are established and necessary ; but then it should be remembered, that subordina- tion itself is an evil, being an evil to the subordinate, who are the majority, and therefore ought not to be carried a tittle be- yond what the greater good, the peaceable government of the community, requires.

The public worship of Christians is a duty of divine ap- pointment. " Where two or three," says Christ, " are gath- " ered together in my name, there am I in the midst of them ;" Matt, xviii. 20. This invitation will want nothing of the force of a command with those who respect the person and authority from which it proceeds. Again, in the epistle to the Hebrews ; "• Not forsaking the assembling of ourselves together, as the " manner of some is," Heb. x. 25 ; which reproof seetns as ap- plicable to the desertion of our public worship at this day, as to the forsaking the religious a.'semblies o/ Christians in the age of the Apostle. Independently of these passages of Scripture, a dis- ciple of Chistianity will hardly think himself at liberty to dis- pute a practice set on foot by the inspired preachers of his re- ligion, coeval with its institution, and retained by every ?tcl into which it has been since divided.

262 OF PRAYER.

CHAPTER V.

OF FORMS OF PRAYER IN PUBLIC WORSHIP.

LITURGIES, or preconcerted forms of public devotion, being neither enjoined nor forbidden in Scrii)ture, there can be no good reason either lor receiving or rejecting them, but that of expediency ; which expediency is to be gathered from a com- parison of the advantages and disadvantages attending u|;on this mode of worship, with those which usually accompany extem- porary prayer.

The advantages of a liturgy are these :

I. That it prevents absurd, extravagant, or impious addres- ses to God, which the folly and enthusiasm of many, in an order of men so numerous as the sacerdotal, must always be in dan- ger of producing, where the conduct of the public worship is entrusted, without restraint or assistance, to the discretion and abilities of the officiating minister.

II. That it prevents the con/i/s?o?j of extemporary prayer, in ■which the congregation being ignorant of each petition be- fore they hear it, and having little or no time to join in it, after they have heard it, are confounded between their attention to the minister, and to their own devotion. The devotion of the hearer is necessarily suspended, until a petition be concluded ; and be- fore he can assent to it, or properly adopt it, that is, before he can address the same request to God for himself, and from himself, his attention is called off to keep pace with what succeeds. Add to this, that the mind of the hearer is held in continual expecta- tion, and detained from its proper business by the very novelty with which it is gratified. A congregation may be pleased and affected with the prayers and devotion of their minister, without joining in them ; in liUc manner as an audience oftentimes are with the representation of devotion upon tlic stage, who, never^

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theless, come away without being conscious cf having exercised an V act of devotion themselves. /o?'?ii' prayer, which is the duty, and amongst ail denoiiiiiiajions of Christians the declared design of " coming together," is prayer in which all join; and not that which one alone in the congregation conceives and delivers, and of which the rest are merely hearers. This objection seems fundinental, and holds even whoe the minister's office is discharged with every possible advantage and accomplishment. The labouring recollection and embarrassed or tumultuous de- livery, of many extempore speakers, form an additional objec- tion to this mode of public worship ; for these imperfections are very general, and give great pain to the serious part of a congregation, as well as afTord a profane diversion to the levity of Ihc other part.

These advantages of a liturgy arc connected with tw-o |)rinci- pal incoriveniences ; first, That fonns of prayer compo^^ed in one age become unfit for another, by the unavoidable change of language, circumstances and o[)inions : secondly, That the per- petual repetition of the same form of words produces weariness tiU'l inattentivenesis in the congregation. However, both thtse inconveniences are in their nature vincible. Occasional revis- ions of a liturgy may obviate the (irst, and devotion will supply a remedy for the second ; or Ihev may both subsist in a coosid- erable degree, and yet be outweighed by the objections which are inseparable from extemporary prayer.

The Lord's Prayer is a precedent, as well as a pattern, for forms of prayer. Our Lord appears, if not to have prescribed, at least to have authorized the use of fixed t'orms, when he com- plied with the request of the disciple who said unto him, " I-ord, '■ teach us to pray, as John also taught his disciples." Luke, \i. 1.

The properties required in a public liturgy are, that it be • naipendious ; that it express just conceptions of the divine at- tributes ; that it recite such wants as the congregation are like- ly to feel, and no other ; and that it contain as few controverted propositions as possible.

264 OF PRAYER.

I. Thai it be co;n[)eiidi0iis.

It were no dillicult task to contract the liturgies ot most! churches into half their present compass, and yet retain every distinct petition, as well as the substance of every sentiment, which can be found in them. But brevity may be studied too much. The composer of a liturgy must not sit down to his work with the hope, that the devotion of the congregation will be uniformly sustained throughout, or that every part will be at- tended to by every hearer. If this could be depended upon a very short service would be sufficient for every purpose that can be answered or designed by social worship ; but seeing the attention of most men is apt to wander and return at intervals, and by starts, he will admit a certain degree of amplification and repetition, of diversity of expression upon the same subject, and variety of phrase and form with little addition to the sense, to the end that the attention, which has been slumbering or ab- sent during one part of the service, may be excited and recal- led by another; and the assembly kept together until it may reasonably be persumed, that the most heedless and inadver- tent have performed some act of devotion, and the most desul- tory attention been caught by some part or other of the public service. On the other hand, the too great length of church ser- vices is more unfavorable to piety than almost any fault of composition can be. It begets, in many, an early and uncon- querable dislike to the public worship of their country or com- munion. They come to church seldom ; and enter the doors, when they do come, under the apprehension of a tedious atten- dance, which they prepare for at first, or soon after relieve, by composing themselves to a drowsy forgetfulness of the place and duly, or by sending abroad their thoughts in search of more amusing occupation. Although there may be some few of a disposition not to be wearied with religious exercises ; yet, where a ritual is prolix, and the celebration of divine service long, no effect, is in general to be looked for, but that indolence will find in it an excuse, and piety be disconcerted by im- patience.

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The length and repetitions complained of in our liturgy, are not so much the fault of the compilers, as the cficct of uniting into one service what was originally, but with very little regard to the conveniency of the people, distributed into three. Not- withstanding that dread of innovations in religion, which seems to have become the panic of the age, few, I should suppose, wou'd be displeased with such omissions, abridgments, or change in the arrangement, as the combination of separate ser- vices must necessarily require, even supposing each to have been taultless in itself. If, together with these alterations, the Epistles and Gospels, and collects which precede them, were composed and selected with more regard to unity of subject and design ; and the Psalms and Lessons eitlier left to the choice of the minister, or better accommodated to the capacity of the au- dience, and the edification of modeiii life ; the church of Eng- land would be in possession of a liturgy, in which those who as- sent to her doctrines would have little to blame, and the most dissatisfied must acknovvlcdge many beauties. The style throughout is excellent ; calm, without coldness ; and though ev- ery where sedate, oftentimes affecting. The pauses in the ser- vice are tlisposed at p>roper intervals. The transitions from one ofiice of devotion to another, from confession to prayer, from prayer to thanksgiving, from thanksgiving to " hearing of the word," are contrived, like scenes in the drama, to supply the mind with a succession of diversified engagements. As much variety is introduced also into the form of praying, as this kind of composition seems capable of admitting. The prayer at one time is continued ; at another, broken by responses, or cast into short alternate ejaculations ; and sometimes the congregation are called upon to take their share in the service, by being left to complete a sentence which the minister had begun. The enu- rwention of human wants and sufferings in the Litany is almost complete. A Christian petitioner can have few things to ask of Ciod, or deprecate, which he will not find there expressed, and ior the most part with inimitable tenderness and simplicity. 34

2Gt; OF PRAYER.

II. That it express just conceptions of the divine attributes. This is an article in which no care cr^n be too great. The

popular notions of God are formed, in a great measure, from the account;^ which the people receive of his nature and character in their religious assemblies. An error here becomes the error of multitudes ; and as it is a subject in which almost every opinion lends the way to some practical conclusion, the purity or depra- vation of public manners will be affected, amongst other causes, by the truth or corruption of the public forms of worship.

III. That it recite such w^ants as the congregation are likely to feel, aftd no »ther.

Of forms of prayer, which offend not egregiously against truth and decency, that has the most merit, which is best calculated to keep alive the devotion of the assembly. It were to be wished, therefore, that every part of a liturgy were personally applica- ble to every individual in the congregation ; and that nothing were introduced to interrupt the passion, or damp the flame, which it is not easy to re-kindle. Upon this principle, the state prayers in our liturgy should be fewer and shorter. Whatever may be pretended, the congregation do not feel that concern irv the subject of these prayers, which must be felt, or ever prayer be made to God with earnestness. The s(af?. style likewise seems unseasonably introduced into these prayers, as ill according with that annihilation of human greatness, of which every act that carries the mind to God presents tl;ie idea.

IV. That it contain as few controverted propositions as possi- ble.

We allow to each church the truth of its peculiar tenets, and all the importance which zeal can ascribe to them. We dispute not here the right or the expediency of framing creeds, or of im- posing subscriptions. But why should every position which a church maintains, be woven with so much industry into her forms of public worship ? Some are offended, and some are excluded : this is an evil in itself, at least to them; and what advantage or ■?atisfaclion can be derived to the rest, from the separation of

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tbeir brethren, it is difficult to imagine ; unless it were a duty io publish our system of polemic divinity, under the name ot" making confession of our faith, every time we worship God ; or a sin to 'agree in religious exercises with those from whom we differ in some religious opinions. Indeed, where one man thinks it his duty constantly to worship a being whom another cannot, with the assent of his conscience, permit himself to worship at all, there seems to be no place for comprehension, or any ex- pedient left, but a quiet secession. Ail oiher differences may be compromised by silence. If sects and schisms be an evil, they are as much to be avoided by one side as the other. If sectaries are blamed for taking unnecessary offence, established churches are no less culpable for unnecessarily giving it ; or bound at least to produce a command, or a reason of equivalent utility, for shutting out any from their communion, by mixing with divine worship doctrines which, whether true or false, are ■Knconnected in their nature with devotion.

CHAPTER Vi.

OF THE USE OF SABBATICAL INSTITUTIONS.

AN assembly cannot be collected, unless the time of assom- feling be fixed and known before-hand ; and if the design ef the assembly require that it be held frequently, it is easiest thit it should return at stated intervals. This produces a necessity of appropriating set seasons to the social offices of religion. It is also highly convenient that the same seasons be obs-ij • ed through*- out the country, that all may be employed, or all at leisure to- gether ; for if the recess from worldly occupation be not general, one man's business will perpetually interfere with another man's devotion ; the buyer will be calling at the shop when the seller is gone to church. This part, therefore, of the religious distmc-

268 SABBATICAL INSTITUTIONS,

lion of seasons ; namely, a general intermission of labour and business during times previously set apart for the exercise of public worship, is founded in the reasons which make public worship, itself a duty. But the celebration of divine service never occupies the whole day. What remains, theretore of Sun- day, beside the part of it emi/loyed at church must be consider- ed as a merft rest from the ordinary occupations of civil life ; and he who would defend the institution, as it is required to l)e observed in Christian countries, unless he can produce a com- mand for a Chi istian Sabbath, must point out the uses of it in that view.

First, then, that interval of relaxation vvhicji Sunday affords to the laborious part of mankind, contributes gi^eatly to the comfort and satisfaction of their lives, both as it refreshes them for the time, and as it relieves their six days labour by the prospect of a day of rest always approaching ; which could not be said of casual indulgences of leisure and rest, even were they more fre- quent than there is reason to expect they would be, if left to the discretion or humanity of interested task-masters. To this difierence it may be added, that holidays, which come seldom and unex))ectcd, are unprovided, when they do come, with any duty or employment ; and the manner of spending them being regulated by no public decency or established usage, they are commonly consumed in rude, if not criminal pastimes, in a stupid sloth, or brutish intemperance. Whoever considers how much sabbatical institutions conduce, in this respect, to the happiness and civilization of the labouring classes of mankind, and reflects how great a majority of the human species these classes compose, will acknowledge the utility, whatever he may believe of the or- igin, of this distinction ; and will consequently perceive it to be every man's duty to uphold the observation of Sunday when once established, let the establishment have proceeded from whom or what authority it will.

Nor is there any thing lost to the community by the intermis- sion of public industry one day in the week. For in countries

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tolerably advanced in population and the arts of civil life, there is always enough of human labour, and to spare. The difficulty is not so much to procure, as to employ it. The addition of the seventh day's labour to that of the other six, would have no oth- er effect than to reduce the price. The labourer himself, who deserved and suffered most of the change, would gain nothing.

2. Sunday, by suspending many public diversions, and the ordinary rotation of employment, leaves to men of all ranks and professions sufficient leisure, and not more than what is sufficient, both for the e?iternal offices of Christianity, and the retired, but equally necessary duties of religious meditation and inquiry. It is true, that many do not convert their leisure to this purpose ; but it is of moment, and is all which a public institution can ef- fect, that to every one be allowed the opportunity.

3. They, whose humanity embraces the whole sensitive crea- tion, will esteem it no inconsiderable recommendation of a week- ly return of public rest, that it affords a respite to the toil of brutes. Nor can we omit to recount this amongst the uses which the divine founder of the Jewish sabbath expressly appointed a law of the institution.

We admit, that none of these reasons show why Sunday should be preferred to any other day in the week, or one day in seven to one day in six or eight ; but these points, which in their na- ture are of arbitrary determination, being established to our hands, our obligation applies to the subsisting establishment, so long as we confess that some such institution is necessary, and are neither able, nor attempt to substitute any other in its place.

270 SABBATICAL INSTITUTIOXS.

CHAPTER VII.

OF THE SCRIPTURE ACCOUNT OF SABBATICAL INSTI- TUTIONS.

THE subject, so far as it makes any part of Christian uiuiai- itj, is contained in two questions :

I. Whether the command, by which the Jewish sabbath was instituted, extends to Christians ?

II. Whether any new command was delivered by Ciirist ; or any other day substituted in the place of the Jewish sabbath by the authority or example of his apostles ?

In treating of the first question, it will be necessary to collect the accounts which are preserved of the institution in the Jewish history ; for the seeing these accounts together, and in one point of view, will be the best preparation for the discussing or judg- ing of any arguments on one side or the other.

In the second chapter of Genesis, the historian having conclu- ded his account of the six days creation, proceeds thus : " And " on the seventh day God ended his work which he had made ; " and he rested on the seventh day from all his work which he " had made ; and God blessed the seventh day and sanctified it, " because that in it he bad rested from all his work which God *' created and made." After this, we hear no more of the sab- bath, or of the seventh day, as in any manner distinguished from the other six, until the history brings us down to the sojourning of the Jews in the wilderness, when the following remarkable passage occurs. Upon the complaint of the people for want of food, God was pleased to provide for their relief by a miracu- lous supply of manna, which was found every morning upon the ground about the camp when the dew went off; " and they gath- *' ered it every morning, every man according to his eating ; and ''' when the sun waxed hot, it melted : And it came to pass, that ■'on the sixth day they gathered twice as much bread, two

SABBATICAL INSTlTUTIOPsS- 271

' omers for one man ; and all the rulers of Ihe congregation came '■' and told Moses ; and he said unto them, This is that which " the Lord hath said, To-morrozo is the rest of the holy sabbath "unto the Lord; bake that whi'h yc will bake to-day, and " seethe that ye will seclhe ; and that which remaineth over lay *' up for you, to be kept until the morning. And they laid it up " till the morning, as Moses bade ; and it did not stink, (as it had " done before, when some of them left it till the morning,) nei- " ther was there any worm therein. And Moses said, Eat that " lo-day ; for to-day is a sabbath unto the Lord, to-day ye shall " not find it in the field. Six days ye shall gather it, but on the *' seventh day, which is the sabbath, in it there shall be none. " And it came to pass, that there went out some of the people on " the seventh day for to gather, and they found none. And the " Lord said unto Moses, How long refuse ye to keep my cora- " mandments and my laws ? See, for that the Lord hath given " you the Sabbath^ therefore he giveth you on th^ sixth day the " bread of two days ; abide ye every man in his place ; let no " man go out of his place on the seventh day. So the people " rested on th(; seventh day." Exodus, xvi.

Not long after this, the sabbath, as is well known, was estab- lished with great solemnity in the fourth commandment.

Now, in my opinion, the transaction in the wilderness above recited, was the first actual institution of the sabbath. For, if the sabbath had been instituted at the time of the creation, as the words in Genesis may seem at first sight to import, and ob- served all along from that time to the departure of the Jews out of Egypt, a period of about two thousand five hundred years, it appears unaccountable that no mention of it, no occasion of even the obscurest allusion to it, should occur, either in the general history of the world before the call of Abraham, which contains, we admit, only a few memoirs of its early ages, and those ex- tremely abridged ; or, which is more to be wondered at, in that of the lives of the three first Jewish patriarchs, which, in many parts of the account, is sufficiently circumstantial aud domestic.

272 SABBATICAL INSTITUTIONS,

Nor is there, in tiie passage above qucjtcd from the sixteenth chapter ot" Exodus, any intimation that the sabbath, then ap- pointed to be observed, was only the revival of an ancient insti- tution, which had been neglected, forgotten, or suspended ; nor is any such neglect imputed either to the inhabitants of the old world, or to any part of the family of Noah ; nor^ lastly, is any lermission recorded to dispense with the institution during the japtivity of the Jews in Egypt, or on any other |)ublic emergency. The passage in the second chapter of Genesis, which creates the whole controversy upon the subject, is not inconsistent with this opinion ; for, as the seventh day was erected into a sabbath, on account of God's resting upon that day from the work of the creation, it was natural enough in the historian, when he had re- lated the history of the creation, and of God's ceasii?^ from it on the seventh day, to add : " And God blessed the seventh day, " and sanctified it, because that on it he had rested from all his " work which God created and made ;" although the blef^sing and sanctification, i. e. the religious distinction and appropria- tion of that day, was not actually made till many ages after- wards. The words do not assert, that God theti " blessed" and " sanctified" the seventh day, but that he blessed and sanctified h for that reason ; and if any ask, why the sabbath, or sanctifi- cation of the seventh day, was then mentioned, if it was not then appointed, the answer is at hand ; the order of connexion, and not of time, introduced the mention of the sabbath, in the history of the sul>ject which it was ordained to commemorate.

This interpretation is strongly supported by a passage in the prophet Ezekiel, where the sabbath is plainly spoken of as ^g^tnew ; and what else can that mean, but as first instituted in the wild- erness ? " Wherefore I caused them tn go forth out of the land "of Egypt, and brought them into the wilderness ; and 1 gave " them my statutes and shewed them my judgments, which if a " man do, he shall even live in them : moreover also 1 gave them " my sabbaths, to be a sign between me and them, that they " might know that I am the Lord that sanctify them." Ezek. XX. 10, 11, 12.

gABBATiCAL INSTITUTIONS, 2'?3

Nehetniah also recounts the promulgation of the sabbatic law amongst the transactions in the wilderness ; which supplies an- other considerable argument in aid of our opinion :— " Moreover " thou leddest them in the day by a cloudy pillar, and in the " night by a pillar of fire, to give them light in the way wherein " they slx)uld go. Thou earnest down also upon mount Sinai, "and spakest with them from heaven, and gavest them right '•'judgments and true laws, good statutes and commandments, '■' and madest known unto them thy holy sabbath, and commandedst " them precepts, statutes, and laws, by the hand of Moses thy '' servant, and gavest them bread from heaven for their hunger, " and broughtest forth water for them out of the rock."* Neh. jx. 12.

If it be inquired what duties were appointed for the Jewish sabbath, and under what penalties and in what manner it was observed amongst the ancient Jews ; we find that by the fourth commandment, a strict cessation from work was enjoined, not only upon Jews by birth, or religious profession, but upon all who resided within the limits of the Jewish state ; that the same was to be permitted tc their slaves and their cattle ; that this rest was not to be violated, under pain of death : " Whosoever " doeth any work on the sabbath-day, he shall surely be put "to death."' Exod. x>:xi. 15. Beside which, the seventh day was to be solemnized by double sacrifices in the temple : — •' And on the sabbath-day, tii'O lambs of the first year without " spot, and two tenth deals of flour for a meat-offering, mingled " with oil, and the drink-ofifering thereof; this is the burnt-offer-

* For the mention of the sabbath ia so close a counexion with the de- scent of God upon moinit Sinai, and the delivery" of the law from thence, one would be inclined to believe, that Nehemiah referred solely to the fourth commandmsnt. But the fourth commandment certainly did not first make known the sabbath. And it is apparent that Nehemiah obser- ved not the order of events, for he speaks of what passed upon moUnt Si- aai beibre hs mentions the miraculous supplies of bread and water, though the .Tews did not arrive at mount Sinai till some time after both tlies^ mirailfs were wrouscht.

274 SABBATICAL INSTITUTlOxN?:.

" ing of every . sabbath, beside the continual buint-oU'ering Jiid " his drink-oflering." Numb, xxviii. 9, 10. Also holy convo- cations,or assemblies for the purpose, we presume of public wor- ship or religious instruction, were directed to be held on the sabbath-day : " the seventh day is a sabbath of rest, an holy convocation." Levit. xxiii. 3,

And accordingly we read, that the sabbath was in f;M:t obser- ved amongst the Jews by a scrupulous abstinence from every thing that, by any possible construction could be deemed la- bour ; as from dressing meat, from travelling, beyond a sab- bath-day's journey, or about a single mile. In the Maccabean wars, they suiTered a thousand of their number to be slain, rath- er than do any thing in their own defence on the sabbath-day. In the final seige of Jerusalem, alter they had so far overcome their scruples, as to defend their persons when attacked, they refused any operation on tire sabbath-day, by which they might have interrupted the enemy in filling up the trench. After the establishment of synagogues, (of the origin of which we have i;o account,) it was the custom to assemble in them upon the sab- bath-day, for the 'purpose of hearing the law rehearsed and explained, and for the exercise, it is probable, of public devo- tion : For, " Moses of old time hath in every city them that " preach him, being read in the sy7iagogucs every sabbcUh-day.''' The seventh day is Saturday ; and, agreeably to the Jewish way of computing the day, the sabbath held from six o'clock on Friday evening, to six o'clock on Saturday afternoon. — These observations being premised, we approach the main question, Whether the command by which the Jewish sabbath was insti- tuted, extend, to us ?

If the divine command was actually delivered at the creation, it ^vas addressed, no doubt, to the whole hutnan species alike, and continues, unless repealed by some subsecpient revelation, binding upon all who come to the knowledge of it. If the com- mand was published lor the first time in the wilderness, then it was directed to the Jewish people alone ; and something farther,

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<^,ither in the subject or circumstances of the command, will be necessary to show that it was designed for any other. It is on this account, that the question concerning the date of the insti- tution was first to be considered. The former opinion pre- cludes all debate about the extent of the obligatioii ; the latter admits, and, prima facie, induces a belief, that the sabbath ought to be considered as part of the peculiar law of the Jewish policy.

Which belief receives great confirmation from the foilowirg arguments : —

The sabbath is described as a sign between God aad the pao- " pie of Israel : — " Wherefore the children of Israel shall keep " the sabbath, to observe the sabbath throughout their genera- " tions for a perpetual covenant ; it is a sign Uelzceen me and ike " children of Israel forever.^'' Exodus, xxxi. 16, 17. Agaitj ; " And I gave them ray statutes, and showed them my judg- " ments, which if a man do he shall even live in them ; moreover '■'■also I gave them my sabbaths, to be a sign between mc and '•' them, that they might know that I am the Lord that sanctify " them. Ezek. xx. 12. Now it does not seem easy to under- ■stand how the sabbath could be a sign between God and the people of Israel, unless the observance of it was peculiar to that, people, and designed to be so.

The distinction of the sabbath is, in its nature, as much a positive ceremonial institution, as that of aiany other seasons which were appointed by the Levitical law to be kept holy, and to be observed by a strict rest ; as the first and seventh days of unleavened bread ; the feast of Pentecost ; the feast of Tabernacles ; and in the tvve;ity-third chapter of Exodus, the pabbath and these are recited together.

If the command by which the sa!)bath was instituted, be bind- ing upon Christians, it must bind as to the day, the duties, and the penalty ; in none of which it is received.

The observation of the sabbath was not one of the articles '^njoined by (ho apostles, in the fifteenth chapter of Acts, up«ll

276 SABnxVTlCAL INSTITUTION.^.

them, " 'Ahicli from among the Gentiles were turned unto God." St. Paul evidently appears to have considered the sabbath as part of the Jewish ritual, not binding upon Christians as such : — *' Let no man therefore judge you in meat or in drink, or in re- " spect of an holy day, or of the new moon, or of the sabbaih- " days, which are a shadow of things to come, but the body is "of Christ." Col. ii. IG, 17.

I am aware of only two objections which can be opposed to the force of these arguments : one i?, that the reason assign- ed in the fourth commandment for hallowing the seventh day, namely, " because God rested on the seventh day from the " work of the creation," is a reason which pertains to all man- kind ; the other, that the command which enjoins the observa- tion of the sabbath is inserted in the Decalogue, of which all the other precepts and i»rohibitions are of moral and universal obligation.

Upon the first objection it may be remarked, that although in Exodus the commandment is founded upon God's rest Irom the creation, in Deuteronomy the commandment is repeated with a ref<jrence to a different event : " Six days shalt thou labour, and " do all thy work : but the seventh day is the sabbath of the " Lord thy God ; in it thou shalt not do any work ; thou, nor " thy son, nor thy daughter, nor thy man-servant, nor thy *' maid-servant, nor thine ox, nor thine ass, nor any of thy cat- " tie, nor thy stranger that is within thy gates ; that thy man- *' servant and thy maid-servant may rest as well as thou : and " remember that thou wast a servant in the land of Egypt, and " that the Lord thy God brought thee out thence, through a '' mighty hand, and by a stretched out arm ; therfore the Lord " thy God commanded thee to keep the sabbath-day." It is far- ther observable, that God's rest from the creation is pro])Oscd as the reason of the institution, even where the instituiion itself is spoken of as peculiar to the Jews : " Wherefore the children "■ of Israel shall keep the sabbath, to observe the sabbath " throughout their generations, for a perpetual covenant: it is " a sign between me and the children o|" Ureal forever ; (or in

SABBATICAL INSTITUTIONS. 277

"six days tlie Lord made heaven and earth, and on the seventk " day he rested and was refreshed." The truth is, these dif- ferent reasons were assigned, to account for different circumstan- ces in the command. If a Jew inquired, why the seventh day was sanctified rather than the sixth or eighth ? his law told him, because God I'ested on the seventh day from the creation. If he asked, why was the same rest indulged to slaves ? his law bade him remember that he also was a slave in the land of Egypt, and '' that the Lord his God brought him out thence." In this view, the two reasons are perfectly compatible with each other, and with a third end of the institution, its being a sign between God and the people of Israel ; but in this view they determine nothing conceruiog the extent of the obligation. If the reason by its proper energy had constituted a natural obligation, or if it had,been mentioned wilh a view to the extent of the obligation, we should submit to the conclusion, that all were comprehend^ ed by the command who are concerned in the reason. But the sabbatic rest being a duty which results from the ordination and authority of a positive law, the reason can be alleged no farther than as it explains the design of the legislator; and if it appear to be recited with an intentional application to one part of the law, it can explain his design upon no other.

With respect to the second objection, that inasmuch as the other nine commandments arc confessedly of moral and universal obligation, it may reasonably be presumed that this is of the same ; we answer, that this argument will have little weight, when it is considered that the distinction between positive and natural duties, like other distinctions of modern ethics, v/as un- known to the simplicity of ancient language ; and that there are various passages in Scripture, in which duties of a political, or ceremonial, or positive nature, and confessedly of partial obliga- tion, are enumerated, and without any mark of discrimination, along with others which are natural and universal. Of this the ibllovving is an incontestable example : " But if a man be just, '* and do that which is lawful and right ; and hath not eaten upon

278 SABBATICAL L\STITUTIOx\&.

" llic inounlnin.'?, nor halli lift up his eyes lo the idols of the " hoiisc of Israel; neither hath defiled his neighbor's wife, *' nciilur hath come near to a menstruous rn'oman ; and hath iiot " oppressed any, but hath restored to the debtor liis pledge ; hath " spoiled none by violence ; hath given Lis bread to the hungry, " and hath covered the naked \vilh a garment ; he that hath not '^ given upon vsiiry, neither Jutth taken any increase ; that hath "withdrawn his hand from iniquity ; hath executed true judg- " ment between man and man ; hath walked in my statutes, and " hath kept my judgments, to deal truly ; he is just, he shall "surely live, saith the Lord God." Ezekiel, xviii. 5, — 9. The same thing may be observed of the apostolic decree re- corded in the liUeenth chapter of the Acts : — " It seemed good " to the Holj' Ghost, and to us, to lay upon you no greater "burthen than these necessary things, that ye abstain from " meats offered to idols, and from blood, and from things stran- " gled, and from fornication : from which if ye keep your- " selves, ye shall do well."

11. If the law by which the sabbath was instituted was a law only to the Jews, it becomes an important question with the Christian inquirer. Whether the founder of his religion deliver- ed any new commmand upon the subject ? or, if that should not appear to be, the case, whether any day was appropriated to the service of i-eligion by the authority or example of his apostles ?

The practice of holding religious assemblies upon the first day of the week, was so early and universal in the Christian Church, that it carries with it considerable proof of having originated from some precept of Christ, or of his apostles, though none such be now extant, it was upon the first da}' of the week that the dis- ciples were assembled, when Christ appeared to them for the first time after his resurrection ; " then the same day at eve- "' ning, being the first day of the week, when the doors were shut '■ where the disciples were assembled, for fear of the Jews, came -' Jesus, and stood in the midst of them." John, xx. 1 0. This, for any thing tbat appears in the account, might, as to the day,

SABBATICAL INSTITUTIONS. 279

have been accidental ; but in the 26th verse of the same chapter we read. " that after eight days," that is, on the Jirst day of the week following, " again the disciples were within ;" which se- cond meeting upon the same day of the week looks like an ap- pointment and design to meet on that particular day. In tht* twentieth chapter of the Acts of the Apostles, we find the same custom in a Christian Church at a great distance from Jerusa- lem : — " And we came unto them to Troas in five days, where " we abode seven days ; and i(pon the first day of thexaeek, when " the disciples came together to break bread, Paul preached unto " them." Acts, xx. G, 7. The manner in which the historian mentions the disciples coming together to break bread on the first day of the week, shows, I think, that the practice by this time was familiar and established. St. Paul to the Corinthians writes thus : "• Concerning the collection for the saints, as I have given " order to the Churches of Galatia, even so do ye ; upon the "first day of the zveek let every one of you lay by him in store " as God hath prospered him, that there be no gatherings wheH " I come." 1 Cor. xvl. 1, 2. Which direction afiords a probable proof, that the first day of the week was already, amongst the Cliristians both of Corinth and Galatii, distinguished from the rest by some religious application or other. At the time that St, John wrote the book of his Revelation, the first day of the week had obtained the name of the LorWs Day ; — " I was in the spir- " it" (says he) " on the Lord's Day.'", Rev i. 10. Whicli name, and St. John's use of it, suiliciently denote (he appropria- tion of this day to the service of religion, and that this appropri- ation was perfectly known to the (^iiurches of Asia. ! make no doubt but that by the Lord's Day was meant ihe first day of the week ; for, we find no footsteps of any dislinrlion of days, which could entitle any otlicr to that appe'iation. The suhscijuenl his- tory of Christianity corresponds with the accounts delivered on this subject in Scripture.

it will be remembered, tlmt we are contetiding, by these proofs, for no other duty upon the first day of the week, than

280 SABBATICAf. IN.tJirj'UTION^.

that of holding and frequenting religious assemblies. A cessa- tion upon that day from laboar, beyond the time of attendance upon public worship, is not intimated in any passage of the Nevr Testament ; nor did Christ or his apostles deliver, that we know of, any command to their disciples for a discontinuance, upon that day, of the common olfices of their professions : a reserve which none will see reason to wonder at, or to blame as a defect in the institution, who consider that, in the primitive condition of Christianity, the observation of a new sabbath would have been useless, or Inconvenient, or impracticable. During Christ's per- sonal ministry, his religion was preached to the Jews alone. They already had a sabbath, which, as citizens and subjects of that economy, they were obliged to keep, anddid keep. It was not therefore probable that Christ would enjoin another day of rest in conjunction with this. When the new religion came forth into the Gentile world, converts to it were for the most part, made from those classes of society who have not their time and labour at their own disposal ; and it was scarcely to be expect- ed, that unbelieving masters and magistrates, and they who di- rected the employment of others, would permit their slaves and labourers to rest from their work every seventh day ; or that civ- il government, indeed, would have suljmitted to the loss of a seventh j)art of the public industry, and that too in addition to the numerous festivals which the national religions indulged to the people ; at least, this would have been an encumbrance, which might have greatly retarded the reception of Christianity in the world. In reality, the institution of a weekly sabbath is so con- nected with the functions of civil life, and requires so much of the concurrence of civil law, in its regulation and support, that it cannot, perhaps, properly be made the ordinance of any religion, till that religion be received as the religion of the state.

The opinion ihat Christ and his Apostles meant to retain the duties of the Jewish sabbath, shifting only the day from the sev- enth to the first, seems to prevail without sufiicient proof ; nor does any evidence remain in Scripture, (of what, however, is not

CHRISTIAN SABBATH. 281

improbable,) that the first day of the week was thus distinguish- ed in commemoration of our Lord's resurrection.

The conclusion from the whole inquiry, (for, it is our business to follow the arguments, to whatever probability they conduct us,) is this : The assembling upon the first day of the week for the purpose of public worship and religious instruction, is a law of Christianity, of divine appointment ; the resting on that day from our employments longer than we are detained from them by attendance upon these assemblies, is to Christians an ordi- nance of human institution ; binding nevertheless upon the con- science of every individual of a country in which a weekly sab- bath is established, for the sake of the beneficial purposes which the public and regular observation of it promotes, and recom- mended perhaps in some degree to the divine approbation, by the resemblance it bears to what God was pleased to make a sol- emn part of the law which he delivered to the people of Israel, and by its subserviency to many of the same uses.

CHAPTER VIII.

BY WHAT ACTS AND OMISSIONS THE DUTY OF THE CHRISTIAN SABBATH IS VIOLATED.

SINCE the obligation upon Christians to comply with the re- ligious observation of Sunday, arises from the public uses of the institution, and the authority of the apostolic practice, the mau' ner of observing it ought to be that which best fulfils these use«, and conforms the nearest to this practice.

The uses proposed by the institution are : —

1. To facilitate attendance upon public worship.

2. To meliorate the condition of the laborious classes of man- kind, by regular and seasonable returns of rest.

3. By a general suspension of business and amusement, to in-

3G

28:^ CHRISTIAN SABBATH.

vite and enable persons of every description to npply their time and thoughts to subjects appertaining to their salvation.

With the primitive Christians, the peculiar, and probably for some time the only, distinction ot the first day of the week, was the holding of religious assemblies upon that day. We learn, however, from the testimony of a very early writer amongst them, that they also reserved the day for religious meditations : — Unmtquisque, ■nostrum (saith Irencpus) sahbatizat spiritualiter, meditatione legis gaudcns, opijicinm Dei adinirans.

Wherefore the duty of the day is violated,

Ist, By all such employments or engagements as (though dif- fering from ouip ordinary occupation) hinder our attendance upon public worship, or take up so much of our time as not to leave a sufficient part of the day at leisure for religious reflection ; as the going of journies, the paying or receiving of visits which engage the whole day ; or employing the time at home in writing let- ters, settling accounts, or in applying ourselves to studies, or the reading of books, which bear no relation to the business of reli- gion.

2dly, By unnecessary encroachments upon the rest and liberty which Sunday ought to bring to the inferior orders of the com- niaiiity ; as by keeping servants on that day confined and busied in preparations for the superfluous elegancies of our table, or dress.

8dly, By such recreations as are customarily forborne out of respect to the day ; as bunting, shooting, fishing, public diver- sions, frequenting taverns, playing at cards, or dice.

If it be asked, as it often has been, wherein consists the dif- ference between walking out with your stick, or with your gun ? between spending the evening at home, or in a tavern ? between passing the Sunday afternoon at a game of cards, or in conver- sation not more edifying, nor always so inoffensive ? — To these, and to the same question under a variety of forms, and in a inul- lifude of similar examj)les, we return the following answer : — That the religious observation of Sunday, if it ought to be re-

CHRISTIAN SABBATH. 283

iaincd at all, must be upiield by some public and visible distinc- tions : That, draw the line of distinction where you will, many actions which are situated on the confines of the line, will differ very little, and yet lie on opposite sides of it : That every trespass upon that reserve which public decency has established, breaks down the fence by which the day is separated to the ser- vice of religion : That it is unsafe to trifle with scruples and hab- its that have a beneficial tendency, although founded merely in custom : That these liberties, however intended, will certainly be considered by those who observe them, not only as disre- spectful to the day and institution, but as proceeding from a se- cret contempt of the Christian faith : That, consequently, they diminish a reverence for religion in others, so far as the authori- ty of our opinion, or the eflicacy of our example reaches ; 41 rather, so far as either will serve for an excuse of negligence to those who are glad of any : That as to cards and dice, which put in their claim to be considered amongst the harmless occu- pations of a vacant hour, it may be observed, that few find any difficulty in refraining from play on Sunday, except they who sit down to it with the views and eagerness of gamesters : That gami7ig is seldom innocent : That the anxiety and perturbations, however, which it excites, are inconsistent with the tranquility and frame of temper in which the duties and thoughts of religion should always both find and leave us : And, lastly, we shall re- mark, that the example of other countries, where the same or greater licence is allowed, affords no apology for irregularities in our own ; because a practice wbich is tolerated by public order and usage, neither receives the same construction, nor gives the .?acne offence, as where it is censured and prohibited by both.

284 REVERENXING THE DEITY.

CHAPTER IX.

OF REVERENCING THE DEITY.

IN many persons, a seriousness, and sense of awe, overspread tlie imagination, whenever the idea of the Supreme Being is pre- sented to their thoughts. This effect, which forms a considera- ble security against vice, is the consequence, not so much of re- flection, as of habit ; which habit being generated by the exter- nal expressions of reverence which we use ourselves, and observe in those about us, may be destroyed by causes opposite to these, and especially by that familiar levity with which some learn to speak of the Deity, of his attributes, providence, revelations, or worship.

God hath been pleased (no matter for what reason, allhougU probably for this,) to forbid the vain mention of his name : " Thou shalt not take the name of the Lord thy God in vain." Now the mention is vain, when it is useless ; and it is useless, when it is neither likely nor intended to Fcrve any good purpose ; as, when it flows from the lips idle or unmeaning, or is applied upon occasions inconsistent with any consideration of religion or devotion, to express our anger, our earnestness, our courage, or our mirth ; or, indeed, when it is used at all, except in acts of religion, or in serious and seasonable discourse upon religious subjects.

The prohibition of the third commandment is recognized by Christ, in bis sermon upon the Mount ; which sermon adverts to none but the moral parts of the Jewish law : " I say unto you, " Swear not at all ; but let your communication be yea, yea ; ■' nay, nay : for, whatsoever is more than tbese,cometh of evil." The Jews probably interpreted the prohibition as restrained tp the name Jehovah, the name which the Deity had appointed and appropriated to himself, Exod. vi. 3. The words of Christ

REVERENCING THE DEITY. 285

extend the prohibition beyond the name of God, to every thing associated with the idea : " Swear not, neither by heaven, fori,t " is God's throne ; nor by the earth, for it is his footstool ; nei- "ther by Jerusalem, for it is the city of the great King." Matt- V. 35.

The offence of profane swearing is aggravated by the consid- eration, that duty and decency are sacrificed thereby to the slenderest of temptations. Suppose the habit, either from affec- tation, or by negligence and inadvertency, to be already form- ed, it costs, one would think, little to relinquish the pleasure and honour which it confers ; and it must always be within the pow- er of the most ordinary res.olution to correct it. Zeal, and a concern for duty, are, in fact, never strong, when the exertion requisite to vanquish a habit, founded in no antecedent propensi- ty, is thought too much, or too painful.

A contempt of positive duties, or rather of those duties for which the reason is not so plain as the command, indicates a dis- position upon which the authority of revelation has obtained lit- tle influence. This remark is applicable to the offence of pro- fane swearing, and describes, perhaps, pretty exactly, the gen- eral character of those who are most addicted to it.

Mockery and ridicule, when exercised upon the Scriptures, ov even upon the places, persons, and forms set apart for the minis- tration of religion, fall within the mischief of the law which for- bids the proianation of God's name ; especially as it is extend- ed by Christ's interpretation. They are moreover inconsistent with a religious frame of mind ; for, as no one ever feels himself either disposed to pleasantry, or capable of being diverted with the pleasantry of others, upon matters in which he is cordially interested ; so a mind intent upon the attainment of heaven, re- jects with indignation every attempt to entertain it with jests, calculated to degrade or deride subjects, which it never recol- lects, but with seriousness and anxiety. Nothing but stupidity, or the most frivolous dissipation of thought, can make even the inconsiderate forget the supreme importance of every thing

286 REVERENCLNG THE DEITF.

which relates to the expectation of a future existence. Whilst the infidel mocks at the superstitions of the vulgar, insults over their credulous fears, their childish errors, and fantastic rites, it does not occur to him to observe, that the most preposterous de» vice by which the weakest devotee ever believed he was secur- ing the happiness of a future life, is more rational than uncon- cern about it. Upon this subject, nothing is so absurd as indif- ference ; — no folly so contemptible, as thoughtlessness and levitj*. Finally, the knowledge of what is due to the solemnity of those interests, concerning which revelation professes to inform and direct us, may teach even those who are least inclined (o respect the prejudices of mankind, to observe a decorum in the style and conduct of religious disquisitions, with the neglect of which many adversaries of Christianity are justly chargeable. Serious arguments are fair on all sides. Christianity is but ill defended by refusing audience or toleration to the objections of unbelievers. But whilst we would have freedom of inquiry re- trained by no laws, but those of decency, we are entitled to demand, on behalf of a religion which holds forth to mankind assurances of immortality, that its credit be assailed by no other weapons than those of sober discussion and legitimate reason- ing : — that the iruth ox falsehood of Christianity be never made a topic of raillery, a therae for the exercise of wit or eloquence, or a subject of contention for literary fame and victory : — that the cause be tried upon its merits : — that all applications to the fancy, passions, or prejudices of the reader, all attempts to pre- ,occupy, ensnare, or perplex his judgment, by any art, influence, or impression whatsoever, extrinsic to the proper grounds and evidence upon which his assent ought to proceed, be rej^ted from a question, which involves in its determination the hopes, the virtue, and repose of millions : — that the controversy be managed on both sides with sincerity ; that is, that nothing he produced, in the writings of either, contrary to, or beyond, the writer's own knowledge and persuasion : — that objections and difficulties be proposed, from n* olbcr aiotive than »^ honesi

REVERENCING THE DEITY. 28 /

and serious desire to obtain satisfaction, or to communicate in- formation which may promote the discovery and progress of truth : — that in conformity with this design, every thing be sta- ted with integrity, with method, precision, and simplicity ; and, above all, that whatever is published in opposition to received and confessedly beneficial persuasions, be set forth under a form which is likely to invite inquiry, and to meet examination. If with these moderate and equitable conditions be compared the inanner in which hostilities have been waged against thc> Christian religion, not only the votaries of the prevailing faith, but every man who looks forward with anxiety to the destina- tion of his being, will see much to blame and to complain of. By 07ie unbeliever, all the follies which have adhered, in a long course of dark and superstitious ages, to the popular creed, are assumed as so many doctrines of Christ and bis Apostles, for the purpose of subverting the whole system by the absurdities which it is l!ms represented to contain. By another, the ignorance and vices of the sacerdotal order, their mutual dissensions and persecutions, their usurpations and encroach- ments upon the intellectual liberty and civil rights of mankind, have been displayed with no small triumph and invective ; not' so much to guard the Christian laity against a repetition of the same injuries (which is the only proper use to be made of the most flagrant examples of the past,) as to prepare the way for an insinuation, that the religion itself is nothing else than a J»rofitable fable, imposed upon the fears and credulity of the multitude, and upheld by the frauds and influence of an inter- ested and crafty priesthood. And yet, how remotely is the char- acter of the clergy connected with the truth of Christianity T What, after all, do the most disgraceful pages of ecclesiastical history prove, but that the passions of our common nature are not altered or excluded by distinctions of name, and that the characters of men are formed much more by the temptations than the duties of their profession ? — A third finds delight in collect- ing and repeating accounts of wars and massacres, of tumults and

288 REVERENCING THE DEITY.

insurrections, excited in almost every age of the Christian cefa by religious zeal ; as though the vices of Christians were parts of Cliristianity ; intolerance and extirpation precepts of the Gos- pel ; or as if its spirit could be judged of from the counsels of princes, the intrigues of statesmen, the pretences of malice and ambition, or the unauthorized cruelties of some gloomy and vir- ulent superstition. — By a fourth^ the succession and variety of popular religions ; the vicissitudes with which sects and tenets have flourished and decayed ; the zeal with which they were once supported, the negligence with which they are now remem- bered : the little share which reason and argument appear to have had in framing the creed, or regulating the religious con- duct of the multitude ; the indiflference and submission with which the religion of the state is generally received by the common people ; the caprice and vehemence with which it is somptimes opposed ; the phrenzy with which men have been brought to contend for opinions and ceremonies, of which they knew nei- ther the proof, the meaning, nor original ; lastly, the equal and undoubting confidence with which we hear the doctrines of Christ or of Confucius, the law of Moses or of Mahomet, the Bible, the Koran, or the Shaster, maintained, or anathematized, taught or abjured, revered or derided, according as we live on this or on that side of a river ; keep within or step over the boundaries of a state ; or even in the same country, and by the same people. so often as the event of a battle, or the issue of a negociation, delivers them to the dominion of a new master ; — points, I say, of this sort, are exhibited to the public attention, as so many ar- guments against the truth of the Christian religion ; — and with success. For these topics being brought together, and set off with some aggravation of circumstances, and with a vivacity of style and description familiar enough to the writings and conver- sation of free-thinkers, insensibly lead the imagination into a hab- it of classing Christianity with the delusions tliat have taken pos- session, by turns, of the public belief; and of regarding it, as what the scoffers of our faith represent it to be, the superstition

REVERENCING THE DEITY. ^89

>^fthe day. But is this to deal honestly by the subject, or with the world ? May not the same things be said, may not the same prejudices be excited by these representations, whether Chris- tianity be true or false, or by whatever proofs its truth he attes- ted ? May not truth as well as falsehood be taken upon credit ? May nut religion.be founded upon evidence accessible and satis- factory to every mind competent to the inquiry, which yet, by the greatest part of its professors, is received upon authority ?

But if the matter of these objections be reprehensible, as cal- culated to produce an effect upon the reader beyond what their real weigiit and place in the argument deserve, st'll more shall We discover of management and disingcnuousness in the ,i^c;r,'« un- der-f\'hi.ch they are dispersed among the public. Infidehty is scrvcid up in every shape Ihit is likely to allure, surprise, or be- guile tlift imagination ; in a fable, a tale, a novel, a poem ; in in- terspersed and broken hints ; remote and oblique surmises ; in books of travels, of philosophy, of natural history ; in a w^ord, in any form rather than the right one, that of a professed and regular disquisition. And because the coarse buffoonry, and broad lai>gh, of the old and rude adversaries of the Christian faith, would offend the taste, perhaps, rather than the virtue, of this cultivated age, a graver irony, a more skilful and delicate banter, is substituted in their place. An eloqueTit historian, be- r-ides his more direct, and therefore fairer, attacks upon the cred- ibility of the Evangelic story, has contrived to weave into his narration one continued sneer upon the cause of Christianity, and upon the writings and ciiaracters of its ancient patrons. The knowledge which ih'n author possesses of the frame and conduct of the human mind, mii«t have- led him to observe, that such at- tacks do thei? execution without inquiry. Who dan refute a sneer 1 Who can comnuto the number, much less one by one, scrutinize the justice of those disparaging insinuations^ which f-rowd the pages of this elaborate history ? What reader sus- pends his curiosity, or call:; off his attention from the principal narrative, to examine references, to .searcli into the foundatinrj^ 37

290 REVERENCING THE DEITY.

or to weigh the reason, propriety, and force of every transient sarcasm, and sly allusion, by which the Christian testimony is depreciated and traduced : and by wiiich, nevertheless, he may fintl his faith afterwards unsettled and perplexed ?

But the enemies of Christianity have pursued her with poisoned arrows. Obscenity itself is made the vehicle of infidelity. The awful doctrines, if we be not permitted to call them the sacred truths of our religion, together with all the adjuncts and appen- dages of its worship and external profession, have been some- times impudently profaned by an unnatural conjunction with im- pure and lascivious images. The fondness for ridicule is almost universal ; and ridicule to many minds is never so irresistible, as when seasoned with obscenity, and employed upon religion. But in proportion as these noxious principles take hold of the imagination, they infatuate the judgment : for, trains of ludicrous and unchaste associations adhering to every sentiment and men- tion of religion, render the mind indisposed to receive either con- viction from its evidence, or impressions from its authority. And this effect being exerted upon the sensitive part of our frame, is altogether independent of argument, proof, or reason ; is as formidable to a true religion, as to a false one ; to a well ground- ed faith, as to a chimerical mythology, or fabulous tradition. Neither, let it be observed, is the crime or danger less, because impure ideas are exhibited under a veil, in covert and chastised language.

Seriousness is not constraint of thought ; nor levity, freedom. Every mind which wishes the advancement of truth and know- ledge in the most important of all human researches, must abhor this licentiousness, as violating no less the laws of reasoning, than the rights of decency. There is but one description of men to whose principles it ought to be tolerable ; I mean that class of reasoners who can see little in Christianity, even supposing it to be true. To such adversaries we address this reflection : — Had Jesus Christ delivered no other declaration than the following : " The hour is coming, in the which all that

REVERENCING THE DEITY. f9l

" are in the grave shall hear his voice, and shall come forth ; " they that have done good unto the resurrection of life, and they " that have done evil unto the resurrection of damnation ;" he had pronounced a message of inestimable importance, and well worthy of that splendid apparatus of prophecy and miracles with which his mission was introduced and attested ; a message in which the wisest of mankind would rejoice to iiiid an answer to their doubts, and rest to their inquiries. It is idle to say, that a future state had been discovered already ; it had been dis- covered as the Copernican system was, — it was one guess among many. He alone discovers who proves ; and no man can prove this point, but the teacher who testifies by miracles that his doc- trine comes from God.

BOOK Vi.

rXEMENTS OF POLITICAL KNOWLEDGE.

CHAPTEIl I,

OF THE ORIGIN OF CIVIL GOVERNMENT.

GOVERNMENT, at first, v.as eilbcr patriarchal or miliiary ) ^hat of a parent over liis family, or of a coinmander over his fel- low-warriors.

I. Paternal authority, and the order of domestic life, siipjjiicd the foundation of civil govermnent. Did mankhid spring out of the earth mature and independent, it would be found, perhaps^ impossible to introduce subjection and subordination among them; but the condition of human infancy prepares men for society, by conibining individuals into small communities, and by placing them from the beginning under direction and control. A family con- tains the rudiments of an empire. The authority of one over many, and the disposition to govern and to be governed are in this way incidental to the very nature, and coeval, no doubt^ with the cxi.stcncc of the human sjiecics.

Moreover, the constitution of families not only assists the fonii- ntion of civil government, by the dispositions which it generates, but also furnishes the iirst steps of the process by which empires have been actually reared. A paienl would retain a considera- ble part of his authority after his children were grown up, and had formed families of their own. The obedience, of which •they remembered not the beginning, would be considered as iiar

CIVIL govehnment. 293

iural ; and would scarcely, during the parent's life, be entirely .or abrujjlly withdrawn. Here, then, we see the second stage in the progress o( dominion The first was, that of a parent over his young childrea ; this, that of an ancestor presiding over his adult descendants.

Although the original progenitor was the centre of unign to his posterity, yet it is not probable that the association would be immediately or altogether dissolved by his death. Connected by habits of intercourse and affection, aod by some common rights, necessities and interests, they would consider themselves as allied to Ccich other in a nearer degree than to the rest of the species. Abnost a!! would be sensible of an inclination to con- tinue in the society in which they had been brought up ; and experiencing, as they soon would do, many inconveniences from the absence of that authority which their common ancestor exer- cised, especially in deciding their disputes, and directing their operations in matters in which it was necessary to act in con- juixtion, they might be induced to supply his place by a formal choice of a successor : or rather, might willinglj'-, and almost imperceptibly, transfer their obedience to some one of the fam- ily, who by his age or services, or by the part he possessed in the direction of their affairs during the lifetime of the parent, had already taught them to respect his advice, or tq attend to his commands ; or, lastly,- the prospect of these inconveniences might prompt the first ancestor to appoint a successor ; and his posterity, from the same motive, united with an habitual defer- ence to his authority, might receive the appointment with sub- mission. Here then we have a tribe or clan incorporated under one chief. Such communities might be incryrfMCjLby considera- ble numbers, and fulfil the purposes of civiHOTiron without any other or more regular convention, constitution, or form of govern- ment than what we have described. Every branch which wa^ slipped ofT from the primitive stock, and removed to a distance from it, would in like manner take root, and grow into a separate flan. Two or three of these clans v>'ere frequently, we may

294 ORIGIN OF

suppose, united into one. Marriage, conquest, inulual dclcricp, common distress, or more accidental coalitions, might produce this effect.

II. A second source of personal authority, and which might easily extend, or sometimes perhaps supersede the patriarchal, is that which results from military arrangement. In wars, either of aggression or defence, manifest necessity would prompt those who fought on the same side to array themselves under one leader. And although iheir leader was advanced to this emi- nence for the purpose only, and during the operations of a sin- gle expedition, yet his authority would not always terminate with the reasons for which it was conferred. A warrior who had led forth his tribe against their enemies with repeated suc- cess, would procure to himself, even in the deliberations of peace, a powerful and permanent influence. If this advantage were added to the authority of the patriarchal chief, or fnvonr- cd by any previous distinction of ancestry, it would bo no dif- ficult undertaking for the person who possessed it to obtain the almost absolute direction of the affairs of the community : es- pecially if he was careful to associate to himself proper auxilia- ries, and content to practice the obvious art of gratifying or re- moving those who opposed his pretensions.

But although we may be able to comprehend how by his personal abilities or fortune one man may obtain the rule over many, yd it seems more difficult to explain how empire be- came hereditary, or in what manner sovereign power, which is never acquired without great merit or management, learns to descend in a succession which has no dependence upon any qualities either of understanding or activity. The causes which have introduced hereditary dominion into so general a reception in the world are principally the following : — the influence of as- sociation, which communicates to the son a portion of the same respect which was wont to be paid to the virtues or station of the father; the mutual jealousy of other competitors; the greater envy with which all behold the exaltation of an equal,

CIVIL GOVERNMENT. 295

than the continuance of an acknowledged superiority ; a reigning - prince leaves behind him many adherents, who can preserve their own importance only by siipporting the succession of his children : add to these reasons, that elections to the supreme power having upon some occasions, produced the most destruc- tive contentions, many states would take refuge from a return of the same calamities in a rule of succession ; and no rule pre- sents itself so obvious, certain, and intelligible, as consanguinity of birth.

The ancient state of society in most countries, and the mod- ern condition of some uncivilized parts of the world, exhibit that appearance which this account of the original of civil gov- ernment would lead us to expect. The earliest histories of Palestine, Greece, Italy, Gaul, Britain, inform us, that these countries were occupied by many small independent nations, not much, perhaps, unlike those which are found at present amongst the savage inhabitants of North America, and upon the coast of Africa. These nations I consider as the amplifications of so many single families ; or as derived from the junction of two or three families, whom society in war, or the approach of common danger, had united. Suppose a country to have been first peopled by shipwreck on its coasts, or by emigrants or ex- iles from some neighboring country ; the new settlers, having no enemy to provide against, and occupied with the care of their personal subsistence, would think little of digesting a system of laws, of contriving a form of government, or indeed of any po- litical union whatever ; but each settler would remain at the head of his own family, and each family would include all of eve- ry age and generation who were descended from him. So many of these families as were holden together after Ihe death of the original ancestor, by the reasons and in the method above re- cited, would wax as the individuals were multiplied, into tribes, clans, hordes or nations, similar to those into which the ancient inhabitants of many countries are known to have been divided, and which are still found wherever the state of society and manners is immature and uncultivated.

296 SUBJECTION TO

Nor need we be surprised at the early existence in the worltl of some vast empires, or at the rapidit}'- with which they ad- vanced to their greatness, from comparativcl}- small and obscure originals. Whilst the inhabitants of so many countries uere broken into numerous communities, unconnected, and oftentimes contending with each other ; before 'experience had taught these little states to see their own danger in their neghbour's ruin ; or had instructed them in the necessity of resisting the ag'/randize- ment of an aspiring power, by alliances, and timely prepara- tion ; in this condition of civil policy, a particular tribe, who by any means had got the start of the rest in strength or discipline, and happened to fall under the conduct of an ambitious chief, by directing their first attempts to the part where success waft most secure, and by assuming, as they went along, those whom they conquered into a share of their future enterprises, might soon gather a force which would infallibly overbear any oppo- sition that the divided power and unprovided state of such ene- mies could make to the progress of their victories.

Lastly, Our theory affords a presumption, tliat the earliest governments were monarchies, because the government of fami- lies, and of armies, from which, according to our account, civif government derived its institution, and probably its form, is uni- versally monarchical.

CHAPTER II.

ilOW SUBJECTION TO CIVIL GOVERNxMENT IS MAl!^- TAINED.

COULD we view our own species from a distance and re- gard mankind with the same sort of observation with which we read the natural history, or remark the manners of any other an- imal, there isnothinc; in the human character which would more

CIVIL GOVERNMEI^T, 297

sarpi'is.e us than the almost universal subjugation of strength to weakness ; — than to see many millions, perhaps of robust men, iti the complete use and exercise of their personal faculties, and with- out any defect of courage, waiting upon the will of a child, a woman, a driveller, or a lunatic. And although, when we sup- pose a vast empire in absolute subjection to one person, and that one depressed beneath the level of his species by intirmities or vice, we suppose perhaps an extreme case : yet in all cases, even in the most popular forms of civil government, the physical strength resides in the governed. In what manner opinion thus j prevails over strength, or how power, which naturally belongs to superior force, is maintained in opposition to it ; in other words, by what motives the many are induced to submit to the few, becomes an inquiry which lies at the root of almost every political speculation. It removes, indeed, but does not resolve ' the difficulty to say, that civil governments are now-a-days al- most universally upheld by standing armies ; for, the question still returns, How are these armies themselves kept in subjection, or made to obey the directions, and carry on the designs, of the prince or state which employs them ?

Now, although we should look in vaiu for any single reason which will account for the general submission of mankind to civil government ; yet it may not be difficult to assign for every class and character in the community, considerations powerful enough to dissuade each from any attempts to resist established author- ity. Every man has his motive, though not the same. In this, as in other instances, the conduct is similar, but the principles which produce it extremely various.

There are three princi{>al distinctions of character into which the subjects of a state may be divided ; into those who obey from prejudice ; those who obey from reason ; and those who obey from self-interest-

1. They who obey from prejudice, are determined by an opin- ion of right, in their governors ; which opinion is founded upon prescription. In monarchies and aristocracies which ^re hered- 38

298 SUBJECTION TO

itary, the j)icscri|ttioii operates in lavour of particular families ; in republics and elective olVices, in favour of particular forms of government, or constitutions. Nor is it to be wondered at, that mankind should reverence authority founded in prescription, when they observe that it is prescription which confers a title to almost every thing else. The whole course and all the habits of civil life, favour this prejudice. Upon what other foundation stands any man's right to his estate ? The right of primogeni- ture, the succession of kindred, the descent of property, the in- heritance of honours, the demand of tithes, tolls, rents, or servi- ces from the estates of others, the right of way, the powers of office and magistracy, the privileges of nobility, the immunities of the clergy, upon wliat are they all founded, in the apprehen- sion at least of the multitude, but open prescription ? To what else, when the claims are contested, is the appeal made ? It is natural to transfer the same [)rinciple to the aflairs of govern- ment, and to regard those exertions of power, which have been long exercised and acquiesced in, as so many rights in the sove- reign ; and to consider obedience to his commands, within cer- tain accustomed limits, as enjoined by that rule of conscience, which requires us to render to every man his due.

In hereditary monarcliies, Ihe prescriptive title is corroborated, and its influence considerably augmented, by an accession of re- ligious sentiments, and by that sacredness which men arc wont to ascribe to the persons of princes. Princes themselves have not failed to take advantage of this disposition, by claiming a superior dignity, as it were, of nature, or a peculiar delegation from the Supreme Being. For this purpose were introduced thd titles of sacred majesty of God's annointed, representative, vice- gerent, together with the ceremonies of investitures and corona- tions, which are calculated not so much to recognize the author- ity of sovereigns, as to consecrate their persons. Where a fabu- lous religion permitted it, the public veneration has been chal- lenged by bolder pretensions. The Roman emperors usurped the titles and arrogated the worship of gods. The mythology

CIVIL GOVERNMENT. ' 2^^

of the heroic ages, and of many barbarous nations, was easily converted to this purpose. Some princes, like the heroes of Homer, and the founder of the Roman name, derived their birth iVom the gods ; others, with Numa, pretended a secret but su- pernatui'al communication with some divine being ; and others, again, like the Incas of Peru, and the ancient Saxon kings, ex- tracted their descent from the deities of their country. The Lama of Thibet, at this day, is held forth to his subjects, not as the offspring or successor of a divine race of princes, but as the immortal God himself, the object at once of civil obedience and religious adoration. This instance is singular, and may be ac- counted the furthest point to which the abuse of human creduli- ty has evei- been carried. But in all these instances the pur- pose was the same, — to engage the reverence of mankind, by au application to their religious principles.

The reader will be careful to observe, that in this article we denominate every opinion a prejudice, which, whether true or false, is not founded upon argument, in the mind of the person who entertains it.

II. They who obey from reason, that is to say, from con- science, as instructed by reasonings and conclusions of their own, are determined by the consideration of the necessity of some government or other ; the certain mischief of civil commotions ; and the danger of re-seltling the government o/ their counby better, or at all, if once subverted or disturbed.

III. They who obey from self-interest, are kept in order by xvant of leisure : by a succession of private cares, pleasures, and engagements ; by contentment, or a sense of ease, plenty, and Safety which they enjoy ; or, lastly, and principally, by fear, foreseeing that they would bring thewselves by resistance into a worse situation than their prefent, inasmifch as the strength of government, each discontented subject reflects, is greater than feis own, and he knows not that others would join him.

This last consideration has often been called opinion of power..

f

300 sOBjEcrroN to

This account of Ihc principles by which mankind are relaiiied in their obcdioiice to civil government, may suggest tl)e follow- ing cautions : —

1. Let civil governors learn from hence to respect their sub- jects ; Jet them be admonished, that the physical strength resides ifi the governed ; thot this strength wants only to be fr-It and roused, to lay prostrate the most ancient and confirmed domin- ion ; that civil authority is founded in (tpinion ; that general opinion tliercfoB* ought always to be treated with deference, and managed with delicacy and circumspection.

2. Opinioa of right, always following the custom, feeing for the most part founded in nothing else, and lending one principal support to government, every innovation in the constitution, or, in other words, in the custom of governing, diminishes the sta- bility of government. Hence souje absurdities are to be retain- ed, and many small inconveniences endured in every country, rather than tiiat the usage should be violated, or the course of public affairs diverted from their old and smooth channel. Even names are not indifferent. When the multitude are to be dealt with, there is a charm in sounds. It w^as upon this principle, that several statesmen of those times, advised Cromwell to as- sume the title of king, together with the ancient style and insig- nia of royalty. The minds of many, they contended, would be brought to acquiesce in the authority of a King, who suspected the office, and were offended with the administration of a Pro- tector. Novelty reminded theui of usurpation. The adversa- ries of this design opposed ihe measure, from the same persua- sion of the efficacy of names and forms, jealous lest the venera- tion paid to these, should add an influence to the new settlement, which might ensnare the liberty of the commonwealth.

3. Govern niaU may be too secure. The greatest tyrants have been those, whose titles were tlie most uiuiuestioned. Whenever therefore the opinion of right becomes too predominant and su- pcrgtilious, it is abated by breaking the custom. Thus the Re- volution broke the custom of succesiion, and thereby moderated.

CIVIL GOVERNMEx\T. 301

both in the prince and in the people, those lofty notions of he- reditary right, which in the one were become a continual temp- tation to tyranny, and disposed the other to invite servitude, by undue compliances and dangerous concessions.

4. As ignorance of union, and want of communication, appear amongst the principal preservatives of civil authority, it behoves every state to keep its subjects in this want and ignorance, not only by vigilance in guarding against actual confederacies and combinations, but by a timely care to prevent great collections of men of any separate party of religion, or of like occupation or profession, or in any way connected by a participation of in- terest or passion, from settling in the same vicinity. A Protes- tant establishment in this country may have little to fear from its Popish subjects, scattered as they are throughout the kingdom, and intermixed with the Protestant inhabitants, which yet might think them a formidable body, if they were gathered together into one county. The most frequent and desperate riots are those which break out amongst men of the same profession, as weavers, miners, sailors. This 'circumstance makes a mutiny of soldiers more to be dreaded than any other insurrection. Hence also one danger of an overgrown metropolis, and of those great cities and crowded districts, into which the inhabitants of trading countries are commonly collected. The worst effect of popular tumults consists in this, that they discover to the insur- gents the secret of their own strength, teach them to depend up- on it against a future occasion, and both produce and diifuse sen- timents of contidence in one another, and assurances of mutual support. Leagues thus formed and strengthened, may overawe or overset the power of any state ; and the danger is greater, in proportion as, from the propinquity of habitation and intercourse of employment, the passions and counsels of a party can be cir- culated with ease and rapidity. It is by these means, and in such situations, that the minds of men are so affected and pre- pared, that the most dreadful uproars often arise from the slight- est provocations. When the train is laid, a spark will produce the explosion.

f

if

30ii OF SUBMISSION.

CHAPTER 111.

THE DUTY OF SUBMISSION TO CIVIL GOVERNMEN T EX- PLAINED.

THE subject of this chapter js suITicienlly distinguished fruiu the subject of the last, as the motives which actually produce 'civil obedience may be, and often are, very different from the reasons which make that obedience a duty.

In order to prove civil obedience to be a moral duty, and an obligation upon the conscience of the subject, it hath been usual with many political writers, (at the head of whom we find the venerable name of Locke,) to state a compact between the citi- zen and the state, as the ground and cause of the relation be- tween them ; which compact, binding the parties for tlic samr general reason that private contracts do, resolves the duty of submission to civil government into the universal obligation of fidelity in the performance of promises. This compact is two- fold :—

First, An express compact by the primitive (bunders of the state, who are supposed to have convened for the declared pur- pose of settling the terms of their political union, and a future constitution of government. The whole body is supposed, in the first place, to have unanimously consented to be bound by the resolutions of the majority ; that majority, in the next place, to have fixed certain fundamental regulations, and then to have constituted either in one person, or in an assembly, (the rule of succession or appointment being at the same lime determined,) a standing legislature, to whom, under these pre-established restric- tions, the government of the state was thejicetbrward committed, and whose laws the several members of the convention were, by Ihcir first undertaking, thus personally engaged to obey. — This iransaetion is sometimes called the sosial compact,, and these sup-

OF SUBMISSrCMV. SCS

posed original regulations compose what are meant bj the consti- tution, the fundamental laws of the constitution ; and form,, on one side, the inherent, indefeasible prerogative of the crown ; and, on the other, the unalienable birthright of the subject.

Secondly, A tacit or implied compact, by all succeeding mem- bers of the state, who, by accepting its protection, consent to be bound by its laws ; in like manner as, whoever voluntarily en- ters into a private society is understood, without any other or more explicit stipulation, to promise a conformity with the rules, and obedience to the government of that society, as the known conditions upon which he is admitted to a participation of its privileges.

This account of the subject, although specious, and patronized by names the most respectable, appears to labour under the fol- lowing objections : tliat it is founded upon a supposition false in fact, and leading to dangerous conclusions.

No social compact, similar to what is here described, was evor made or entered into in reality ; no such original convention of the people was ever actually held, or in any country could be held, antecedent to the existence of civil government in that coun- try. It is to suppose it possible to call savages out cf caves and deserts, to deliberate and vote upon topics, which the experi- ence, and studies, and refinements of civil life aJone suggest. Therefore no goveniment in the universe began from this orii'-inal. Some imitation of a social compact may have taken place at a revolution. The present age has been witness to a transaction^ which bears the nearest resemblance to this political idea cf any of which history has preserved the account or memory : I refer to the establishment of the United States of North America. We saw the people assembled to elect deputies, for the avowed purpose of framing the constitution of a new empire. We saw this deputation of the peijple deliberating and resolving upon a form of government, erecting a permanent legislature, distribu- ting the functions of sovereignty, establishing and promulgating a code of fundamental ordinances, v/bich were to be considered

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by succeeding generations, not merely as laws and acts oi the state, but as the very terms and conditions of the confeder- ation ; as binding not only upon the subjects and magistrates of the state, but as limitations of power which were to control and regulate the future legislature. Yet even here much was presupposed. In settling the constitution, many important parts were presumed to be already settled. The qualifications of the constituents who were admitted to vote in the election of members of congress, as well as the mode of electing the rep- resentatives, were taken from the old forms ot government. That was wanting, from which every social union should set off, and which alone makes the resolution of the society the act of the in- dividual,— the unconstrained consent of all to be bound by the decision of the majority ; and yet, without this previous con- sent, the revolt, and the regulations which followed it, were com- pulsory upon dissentients.

But the original compact, we are told, is not proposed as a fact, but as a fiction, which furnishes a commodious explication of the mutual rights and duties of sovereigns and subjects. In answer to this representation of the matter, we observe, that the original coiDpact, if it be not a^fact, is nothing ; can confer no actual authority upon laws or magistrates ; nor afford any foun- dation to rights, which are supposed to be real and existing. But the truth is, that in the books, and in the apprehension, of those who deduce our civil rights and obligations a /)rtc//s, the'original convention is appealed to and treated of as reality. Whenever the disciples of this system speak of the constitution ; of the fun- damental articles of the constitution ; of laws being constitutional^ or unconstitutional ; of inherent, unalienable, inextinguishable rights, either in the prince, or the people; or indeed of any laws, usages, or civil rights, as transcending the authority of the subsisting legislature, or possessing aArce and sanction superior to what belong to the modern acts and edicts of the legislature, they secretly refer us to what passed at the original convention. They would teach us to believe, that certain rules and ordinan-

dF StlBMtSSlON. 305

■ses were established by the people, at the same time that they settled the charter of government, and the powers as well as the form of the future legislature ; which legislature eorrse- quently, deriving its commission and existence from the con- sent and act of the primitive assembly, (of which indeed it is Qnly the standing deputation,) continues subject, in the exer- cise of its offices, and as to the extent of its power, to the rules, reservations, and limitations which the same assembly then made and prescribed to it.

"~As the first members of the state were bound by express " stipulation to obey the government which they had erected ; "so the succeeding inhabitants of the same country are under- " stood to promise allegiance to the constitution and government *' they find established^ by accepting its protection, claiming its " privileges, and acquiescing in its laws ; more especially, by "the purchase or inheritance of lands, to the possession of "which, allegiance to the state is annexed, as the very service "and condition of the tenure." Smoothly as this train of ar- gument proceeds, little of it will endure examination. The native subjects of modern states are not conscious of any stip- ulation with their sovereigns, of ever exercising an election whether they vvill be bound or not by the acts of the legisla- ture, of any alternative being proposed to their choice, of a promise either required or given ; nor do they apprehend that the validity or authority of the laws depends at all upon their recognition or consent. In all stipulations, whether they be expressed or implied, private or public, formal or constructive, the parlies stipulating must both possess the liberty of assent and refusal, and also be conscious of this liberty ; which can- not with truth be affirmed of the subjects of civil government, as government is now or ever was, actually administered. This is a defect, which no arguments can excuse or supply : all pre- sumptions of consent, without this consciousness, or in opposi- tion to it, are vain and erroneous. Still less is it possible to re- foncile with atjy idea of stipulation the practice, in which dll 39

306 OF SUBMISSION.

European nations agroe, of founding allegiance upon the circum- stance of nativity, that is, of claiming and treating as subjects all those who are born within the confines of their dominion?, although removed to another country in their youth or infancy. Tn this instance, certainly, the state does not presume a com- pact. Also, if the subject be bound only by his own consent, and if the voluntary abiding in a country be the proof and inti- mation of that consent, by what arguments shall we defend the right, which sovereigns universally assume, of prohibiting, when they please, the departure of their subjects out of the realm ?

Again, when it is contended that the taking and holding pos- session of land amounts to an acknowledgment of the sove- reign, and a virtual promise of allegiance to his laws, it is ne- cessary to the validity of the argument to prove, that the in- ; habitants, who first composed and constituted the state, collec- tively possessed a right to the soil of the country ; a right to parcel it out to whom they [)leased, and to annex to the dona- tion what conditions they thought fit. How came they by this right ? An agreement amongst themselves would not confer it ; that could only adjust what already belonged to tlicm, A so- ciety of men vote themselves to be the owners of a region of the world : — does that vote, unaccompanied especially with any culture, enclosure, or proper act of occupation, make it theirs ? does it entitle them to exclude others from it, or to dic- tate the conditions upon which it shall be enjoyed ? Yet this original collective right and ownership is the foundation of all the reasoning by which the duty of allegiance is inferred from the possession of land.

The theory of government which affirms the existence and the obligation of a social compact, would, after all, merit little dis- cussion, and, however groundless and unnecessary, should re- ceive no opposition from us, did it not appear to lead to con- clusions unfavourable to the improvement, and to the peace, of human society.

1st, Upon the supposition that government was first erectf^d

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by, a«d that it derives all its just authority from resolutions en- tered into by a convention of the people, it is capable of being presumed, that many points were settled by that convention, anterior to the establishment of the subsisting legislature, and which the legislature, consequently, has no right to alter, or in- terfere with. These points are called the fundamentals of the constitution ; and as it is impossible to determine how many, or, what they are, the suggesting of any such serves extremely to embarrass the deliberations of the legislature, and affords a dan- gerous pretence for disputing the authority of the laws. It was this sort of reasoning (so far aii reasoning of any kind was em- ployed in the question) that produced in this >nation the doubt which so much agitated the minds of men in the reign of the se- cond Charles, whether an act of Parliament could of right alter or limit the succession -of the Cvovm.-j'- "' '

2c?/^., If it be by virtue of a compact that the subject ovves obe- •dience to civil government, it will follow that he ought to abide Iby the form of government which he finds established, be it ev- «r so absurd or inconvtinient. He is bound by his bargain. Iv: is not permitted to any man to retreat from his engagement, merely because he finds the performance disadvantageous, or because he has an opportunity of entering into a better. This law of contracts is universal ; and to call the relation between the sovereign and the subject a contract, yet not to apply to i4: the rules, or allow of the effects of a contract, is an arbitrary us^ of names, and an unsteadiness in reasoning, vviiich can teack nothing. Resistance to the encroachrmnts of the supreme naag- istrate may be justified upon this principle ; recourse to arms, for the purpose of bringing about an amendment of the constitu- tion, never can. No form of government contains a provision for its own dissolution ; and few governors will consent to the ex- tinction, or even to any abridgment of their own power. It does not therefore appear, how despotic gt)vernments con ever, in con- •sistency with the obligation of the bubject, be changed or miti- jgated. Despotism is the constitution of many states ; and whilst

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a despotic prince exacts from his siibjpcts the most rigorou'; ser- vitude, according to this account, he is only holding th^m to their agreement. They may vindicate, hy force, the rights which the constitution has left them ; but every attempt to nar- row the prerogative of the crown, by new limitations, and in opposition to the will of the reigning prince, whatever opportu- ities may invite, or success follow it, must be condemned as an infraction of the compact between the sovereign and the subject. 2dlyy Every violation of the compact on the part of the gover- nor, releases the subject from his allegiance, and dissolves the go- vernment. I do not perceive how we can avoid this consequence, jf we found the duty of allegiance upon the compact, and confess any analogy between the social compact and other contracts. In private contracts, the violation or non-performance of the con- ditions, by one of the parties, vacates the obligation of the other. Now, the terms and articles^of the social compact being nowhere extant or expressed ; the rights and offices of the administrator of an empire being so many and various ; the imaginary and controverted line of his prerogative being so liable to be over- stepped in one part or other of it ; the position, that every such transgression amounts to a forfeiture of the government, and consequently authorizes the people to withdraw their obedience, and provide for themselves by a new settlement, would endanger the stability of every political fabric in the world, and has in fact always supplied the disafTecled with a topic of seditious de- clamation. If occasions have arisen, in which this plea has been resorted to with Justice and success, they have been occar sions in which a revolution was defensible upon other and plainer principles. The plea itself is at all times captious and unsafe.

Whereforr, riejecliiig the intervention of a compact, as unr founded in its })rinciple, and dangerous in the application, we assign for the only ground of the subject's obligation, the will

©F OOD, AS COLLECTED FROM EXTEDIENCy.

T!;e steps by which the argument proceeds are few and di»

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rect. — " It is the will of God that the happiness of human life " be promoted :" — this is the first step, and the foundation, not only of this, but of every moral conclusion. " Civil society *' conduces to that end :" — this is the second proposition. " Ci- ^*' vil societies cannot be upheld, unless in each, the interest of " the whole society be binding upon every part and member of " it :" — this is the third step, and conducts us to the conclusion, '* namely, that so long as the interest of the whole society re- ■*' quires it, that is, so long as the established government cannot " be resisted or changed without public inconveniency, it is the "will of God (which will universalFy determines our duty) that " the established government be obeyed," — and no longer.

This principle being admitted, the justice of every particular <:ase of resistance is reduced to a computation of the quantity of the danger and grievance on the one side, and of the probability $nd expense of redressing it on the other.

But who shall judge of this ? We answer, " Every man for ^' himself." In contentions between the sovereign and the sub- ject, the parties acknowledge no common arbitrator ; and it would be absurd to commit the decision to those whose conduct has provoked the question, and whose own interest, authority, and fate, are immediately concerned in it. The danger of er- ror and abuse is no objection to the rule of expediency, because every other rule is liable to the same or greater ; and every rule that can be propounded upon the subject (like all rules which appeal to, or bind the conscience) must in the application de- pend upon private judgment. It may be observed, however, that it ought equally to be accounted the exercise of a man's private judgjnent, whether he be determined by reasonings and conclusions of his own, or submit to be directed bj' the advice ot others, provided he be free to choose his guide.

We proceed to point out some easy but important inferences, which result from the substitution of public expediency into tha place of all implied compacts, promises, or conventions vvbatsov ever.

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I. It may he as much a duty, at one time, to resist govern- ment, 3s it is, at another, to obey it ; to wil., whenever more ad- vantage will, in our opinion, accrue to the community, from re- sistance, than mischief.

II, The lawfuhiess of resistance, or the lawfulness of a revolt, » •does not depend alone upon the grievance which is sustained or feared, but also upon the probable expense and event of the contest. They who concerted the Revolution in Etigland were justifiable in their counsels, because, from the apparent disposi- tion of the nation, and the strength and character of the parties engaged, the measure was likely to be brought about with little mischief or bloodshed ; whereas, it might have been a question with many friends of their country, whether the injuries then en- dured and threatened would have authorized the renewal of a doubtful civil war.

HI. Irregularity in the first foundation of a state, or subse- quent violence, fraud, or injustice, in getting possession of the supreme power, are not sufficient reasons, for resistance, after "the government is once peaceably settled. No subject of the British empire conceives himself engaged to vindicate the jus- tice of the Norman claim or conquest, or apprehends that his duty in any manner depends upon that controversy. So, like- wise, if the house of Lancaster, or even the posterity of Crom- well, had been at this day seated upon the throne of England, we should have been as little concerned to inquire how the founder of the family came there. No civil contests are so futile, although none have been so furious and sanguinary, as those which are excited by a disputed succession.

IV. Not every invasion of the subject's rights, or liberty, or of the constitution ; not every breach of promise, or of oath ; not every stretch of prerogative, abuse of power, or neglect of duty by the chief magistrate, or by the whole or any branch of the legislative body, justifies resistance, unless these crimes draw after them public consequences of sufficient magnitude to out- weigh the evils of civil disturbance. Nevertheless, every ri<5-

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lation of the constitution ought to be watched with jealousy, and resented as such, beyond what tlie quantity of estimable damage would require or warrant ; because a known and settled usage of governing affords the best security against the enormities of uncontrolled dominion, and because this security is weakened by every encroachment which is made without opposition, or oppos- ed without effect.

V. No usage, law, or authority whatever, is so binding, that it need or ought to be continued, when it may be changed with advantage to the community. The family of the prince, the order of succession, the prerogative of the crown, the form and parts of the legislature, together with the respective powers, office, duration, and mutual dependency of the several parts, are all only so many laws, mutable like other laws, whenever expe- diency requires, either by the ordinary act of the legislature, or,^ if the occasion deserve it, by the interposition of the people. These points are wont to be approached with a kind of awe ; they are represented to the mind as principles of the constitu- tion settled by our ancestors, and, being settled, to be no more committed to innovation or debate ; as foundations never to be stirred ; as the terms and conditions of the social compact, to which ev^ry citizen of the state has engaged his fidelity, by vir- tue of a promise which he cannot now recal. Suchyi'easons have no place in our system ; to us, if there be any good reason for treating these with more deference and respect than other laws, it is, either the advantage of the present constitution of government, (which reason must be of different force in different countries, ) or because in all countries it is of importance that the form and usage of governing be acknowledged and understood, as well by the governors as the governed, aud because, the sel- domer it is changed, the more it w ill be respected by both sides.

VI. As all civil obligation is resolved into expediency, what, it may be asked, is the difference between the obligation of an Englishman and a Frenchman ? or, why is a Frenchman bound in conscience to bear any thing from his king, which an English-

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man would not be bound to bear, since the obligation of both iS iounded in tlie same reason ? Their conditions may differ, but their rights, according to this account, should seem to be equal ; and yet we are accustomed to speak of the rights as well as of the happiness of a free people, compared with what belong to the subjects of absolute monarchies : how, you will say, can this comparison be explained, unless we refer to a difference in the compacts by which they are respectively bound ? — This is a fair question, and the answer to it will afford a further illustra- tration of our principles. We admit, then, that there are many things which a Frenchman is bound in conscience, as well as by coercion, to endure at the hands of his prince, to which an Eng- lishman would not be obliged to submit : but we assert, that it is for these two reasons alone ; first, Because the same act of the prince is not the same grievance, where it is agreeable to the constitution, as where it infringes it ; secondly, Because re- dress in the two cases is not equally attainable. Resistance cannot be attempted with equal hopes of success, or with the same prospect of receiving support from others, where the peo- ple are reconciled to their sufferings, as where they are alarmed by innovation. In this way, and no otherwise, the subjects of difierent states possess different civil rights ; the duty of obedi- ence is defined by different boundaries ; and the point of justifi- able resistance placed at different parts of the scale of suffering ; 'all which is sufficiently intelligible without a social compact. VII, " The interest of the whole society is binding upon ev- " ery part of it." No rule, short of this, Avill provide fur the stability of civil government, or for the peace and safety of so- cial life. Wherefore, as individual members of the state are not permitted to pursue their private emolument to the prejudice of the community, so is it equally a consequence of this rule, that no particular colony, province, town, or district, can justly con- cert measures for their separate interest, which shall appear at the same time to diminish the sum of public prosperity. I do not mean, that it is necessary to the justice of a measure, that it

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lii'ofit each and every part of the community ; (for, as the hap- piness of the whole may be increased, whilst that of some parts is diminished, it is possible that the conduct of one part of an empire may be detrimental to some other part, and yet just, pro- vided one part gain more in happiness than the other part loses, so that the common weal be augmented by the change ;) but what I affirm is, that those counsels can never be reconciled with the obligations resulting from civil union, which cause the whole happiness of the society to be impaired for the conveniency of a part. This conclusion is applicable to the question of right be- tween Great Britian and her revolted colonies. Had I been an American, 1 should not have thought it enough to have had it even demonstrated, that a separation from the parent state would produce effects beneficial to America ; my relation to that state im- posed upon me a further inquiry, namely, whether the whole hap- piness of the empire was likely to be promoted by such a meas- ure : Not indeed the hapjjiness of every part ; that was not ne- cessary, nor to be expected ; — but whether what Great Britian would lose by the separation, was likely to be compensated to the joint stock of happiness, by the advantages which America would receive from it. The contested claims of sovereign states, and tlieir remote dependencies, may be submitted to the adjudi- cation of this rule with mutual safety. A public advantage is measured by the advantage which each individual receives, and by the number of those who receive it. A public evil is com- pounded of the same proportions. Whilst, therefore, a colony is small, or a province thinly inhabited, if a competition of in- terests arise between the original country and their acquired do- jninions, the former ought to be preferred ; because it is fit that if one must necessarily be sacrificed, the less give place to the j^realer : but when, by an increase of population, the interest of the provinces begins to bear a considerable proportion to the en- lire interest of the community, it is possible that they may suffer ?o much by their subjection, that not only theirs, but the whole happiness of the empire may be obstructed by their union. The 40

314 OF CIVIL OBEDlEi^CE.

rule and principle of tbe calculation being still the same, the re- sult is difl'erent : and this difference begets a new situation, which entitles the subordinate parts of the state to more equal terms of confederation, and if these be refused, to independency. ■

CHAPTER IV.

OF THE DUTY OF CIVIL OBEDIENCE, AS STATED IN THE CHRISTIAN SCRIPTURES.

WE affirm that, as to the extent of our civil rights and obliga- tions, Christianity hath left us where she found us ; that she hath neither altered nor ascertained it ; that the New Testament con- tains not one passage, which, fairly interpreted, affords either argument or objection applicable to any conclusions upon the subject that are deduced from the law and religion of nature.

The only passages which have been seriously alledged in the controversy, or which it is necessary for us to state and examine, are the two following ; the one extracted from St. Paul's Epistle to the Romans, the other from the First General Epistle of St, Peter :

Romans, xiii. 1 — 7. " Let every soul be subject unto the " higher powers : For thpe is no power but of God ; the pow- " ers that be are ordaine(V>f God. Whosoever therefore resist- *' eth the power, resisteth the ordinance of God : and they that " resist, shall receive to themselves damnation. For rulers are " not a terror to good works, but to the evil. Wilt thou then " not be afraid of the power ? Do that which is good, and thou " shalt have praise of the same : for he is the minister of God " to thee for good. But if thou do that which is evil, be afraid ; " for he beareth not the sword in vain ; for he is the minister of " God a revenger to execute wrath upon him that doeth evil. *' Wherefore ye must needs be subject, not only for wrath, bu5

OF CIVIL OBEDIENCE. 315

*•' also for conscience sake. For, for this cause pay you tribute *' also : for they are God's ministers, attending continually upon " this very thing. Render therefore to all their dues ; tribute " to whom tribute is due, custom to whom custom, fear to whom ■' fear, honour to whom honour."

1 Peter, ii. 13 — 18. " Submit yourselves to every ordi- " nance of man, for the Lord's sake ; whether it b;e to the King " as supreme ; or unto Governors, as unto them that are sent by "him for the punishment of .evil-doers, and for the praise of " them that do well. For so is the will of God, that with well "doing ye may put to silence the ignorance of foolish men ; as

• free, and not using your liberty ibr a cloak of oialiciousnesSj,

• but as the servants of God."

To comprehend the proper import of these instruc'tions, let the reader reflect, that upon the subject of civil obedience there 4ire two questions ; the fir&t whether to obey government be a mo- jral duty and obligation upon the conscience at all ? the second, how far, <ind to what cases, tjiat obedience ought to extend ? that these two questioGS are so disting-uishable in the imagina- tion, that it is possible to treat of the one, without any thought ot the other ; find lastly, that if expressions which relate to one of these questions be transferred and applied to the other, it is with great danger of giving them a signification very differeivt: from the author's meaning. This distinction is not only possible^ but natural. If I met with a person who appeared to entextsifl! doubts, whether civil obedience were a moial duty which o'jghl to be voluntarily discharged, or whether it were not a mere Gub- mission to force., like that which vie yield to a robber who holds a pistol to our breast, I should represent to him the use and offi- ces of civil government, the end and the necessity .cf ci.vil sub-- jection ; or, if I preferred a different theory, 1 should explain to him the social compact, urge him with the obligation and equity of his implied promise and tacit consent to be governed by the Jaws of the state from which he received protection ; or I should argue, perhaps, that nature herself dictated the law of subordina--

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tion, when she planted within us an inclination to associate xvith our species, and framed us with capacities so various and une- qual. From whatever principle I set out, I should labour to in- fer from it this conclusion, " That obedience to the state is to " be numbered amongst the relative duties of human life, for the " transf!;ression of which we shall be accountable at the tribunal " of divine jystice, whether the magistrate be able to punish us " for it or not ;" and being arrived at this concluf^ion, I should stop, having delivered the conclusion itself, and throughout the whole argument expressed the obedience, which I inculcated in the most general and unqualified terms ; all reservations and re- strictions being superfluous, and foreign to the doubts I was em- ployed to remove.

If, in a short time afterwards, I should be accosted by the same person, with complaints of public grievances, of exorbitant taxes, of acts of cruelty and oppression, of tyrannical encroach- ments upon the ancient or stipulated rights of the people, and should be consulted whether it were lawful to revolt, or justifia- ble to join in an attempt to shake off the yoke by open resist- ance ; 1 should certainly consider myself as having a case in question before me very different from the former, I should now define and discriminate. I sliould reply, that if public ex- pediency be the foundation, it is also the measure of civil obe- dience ; that the obligation of subjects and sovereigns is recip- rocal ; that the duty of allegiance, whether it be founded in util- ity or compact, is neither unlimited nor unconditional ; that peace may be purchased too dear ; that patience becomes cul- pable pusillanimity, when it serves only to encourage our rulers to increase the weight of our burthen, or to bind it the faster ; that the submission which surrenders the liberty of a nation, and entails slavery upon future generations, is enjoined by no law of rational morality ; finally, I should instruct him to compare the peril and expense of his enterprise with the effects it was expected to produce, and to make choice of the alternative by vyhich, not his own present relief or profit, but the whole and

OF CIVIL OBEDIENCE. 317

|jertnanent interest of the state was likely to be best promoted. If any one who had been present at both these conversations should upbraid me with change or inconsistency of opinion, should retort upon me the passive doctrine I before taught, the large and absolute terras in which I then delivered lessons of obedience and submission, I should account myseif unfairly dealt with. I should reply that the only difference which the language of the two conversations presented was, that I added now many exceptions arid limitations which ^vere o^nitted or un- thought of then ; that this difference arose naturally from the two occasions, such exceptions being as necessary to the subject of our present conference, as they would have been superfluous and unseasonable in the former. Now, the difference in these two conversations is precisely the distinction to be taken in interprer ting those passages of scripture concerning which we are debat- ing. They inculcate the duty, ihey do not describe the extent of it. They enforce the obligation by the proper sanctions 01 Christianity without intending either to enlarge or contracts without considering indeed the limits by which it is bounded. This is also the method in which the same apostles enjoin the duty of servants to their masters, of children to their parents, of wives to their husbands : " Servants, be subject to your masters." ■ — " Children, obey your parents in all things." — " Wives, sub- "mit yourselves unto your own husbands." The same concise and absolute form of expression occurs in all these precepts, the same silence as to any exceptions or distinctions ; yet no one doubts but that the commands of masters, parents, and husbands, are often so immoderate, unjust, and inconsistent with other obliga- tions, that they both may and ought to be resisted. In letters or dissertations written professedly upon separate articles of mo- rality, we might with more reason have looked for a precise de- lineation of our duty, and some degree of modern accuracy in the rules which were laid down for our direction ; but in those short collections of practical maxims which compose the conclu- sion, or some small portion, of a doctrinal, or perhaps controver-

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c-ial epislle, we cannot be surprised to find the author more soli- citous to impress the duty, than curious to enumerate exceptions. The consideiation of this distinction is alone sufficient to vindi- cate these passages of Scripture from ai)y explanation which may be put upon them, in favour of an unlimited passive obedience. Bat if we be permitted to assume a supposition, which many commentators proceed upon as a certainty, that the first Christ- ians privately cherished an opinion, that their conversion to Christianity entitled them to new immunities, to an exemption, as of right (however they might give way to necessity,) from the authority of the Roman sovereign, we are furnished with a still more apt and satisfactory interpretation of the apostles' words. 1 The two passages apply with great propriety to the refutation of this error ; they teach the Christian convert to o- bey the magistrate " for the Lord's sake ;" " not only for wrath, "but for con^;cience sake : — " there is no power but of God ;" *' that the powers that be," even the present rulers of the Ro- man empire, though heathens and usurpers, seeing they are in possession of the actual and necessary authority of civil govern- ment, " are ordained of God," and, consequently, entitled to receive obedience from those who profess themselves the pecu- iiar sei'vants of God, in a greater (certainly not in a less) degree than from any others. They briefly describe the offices of *f civil governors, the punishment of evil doers, and the praise "of ti)em that do well ;" from which description of the use of government, they justly infer the duty of subjection ; which du- ty being as extensive as the reason upon which it is founded, belongs to christians no less than to the heathen members of the community. If it be admitted, that the two apostles wrote with a view to this particular question, it will be confessed, that their words cannot be transferred to a question totally different from this, with any certainty of carrying along with us their authority and intention. There exists no resemblance between the case of a primitive convert, who disputed the jurisdiction of the Ro- inan govicrnmcpt over a disciple of Christianity, and his who, ac-

Ot" CIVIL OBEDIENCE. 5l9

knowledging the general authority of the state over all its sub- jects, doubts whether that authority be nut, in some important branch of it, so ill constituted, or abused, as to warrant the en- deavours of the people to bring about a reformation by force. Nor can we judge what reply the apostles would have made to this second question, if it had been proposed to them, from any thing they have delivered upon Ihejirst ; any more than in the two consultations above described, it could be known beforehand what I would say in the latter, from the answer which 1 gave to the former.

The only defect in this account is, that neither the Scriptures, nor any subsequent history of the early ages of the church, fur- nish any direct attestation of the existence of such disaffected sentiments amongst the j rimitive converts. They supply indeed some circumstances which render probable the opinion, that ex- travagant notions of the political rights of the Christian state were at that time entertained by many proselytes to the reli- gion. From the question proposed to Christ, " Is it lawful to "give tribute unto Cesar?" it may be presumed that doubts had been started in the Jewish schools concerning the obligation, or even lawfulness, of submission to the Roman yoke. The ac- counts deliveied by Josephus, of various insurrections of the Jews of that and tlie following age, excited by this principle, or upon this pretence, confirm the presumption. For, as the Christians were at first chiefly taken from the Jews, confounded with them by the rest of the world, and from the affinity of the two religions, apt to intermix the doctrines of both, it is not to be wondered at that a tenet so flattering to the self-impor- tance of those who embraced it, should have been commutiica- ted to the new institution. Again the teachers of Christianity, amongst the privileges which their religion conferred upon its professors, were wont to extol the '■'■liberty into which they were "called," — "in which Christ had made them ir^e^ This liberty, which was intended of a deliverance from the various servitude, in which they had heretofore lived, to the don^iina-

320 OF CIVIL OBEDIENCt.

tion of sinful passions, to the superstition of the Gentile idola- try, or the encumbered ritual of the Jewish dispensation, might by some be interpreted to signify an emancipation from all re- straint which was imposed by an authority merely human. At least, they might be represented by their enemies as maintaining notions of this dangerous tendency. To some error or calumny of this kind, the words of St. Peter, seem to allude : — " For so " is the will of God, that with well doing ye may put to silence "the ignorance of foolish men : as free, and not using your lib- " erty for a clock of maliciousness (i. e. sedition,) but as the " servants of God." • After all, if any one think this conjecture too feebly supported by testimony to be relied upon in the interpretation of Scripture, he will then revert to the considera- tions alledged in the preceding part of this chapter.

After so copious an account of what we apprehend to be the general design and doctrine of these much agitated passages, little need be added in explanation of particular clauses. St. Paul has said, " Whosoever resisteth the power, resisteth the *' ordinance of God." This phrase, "the ordinance of God," is by many so interpreted as to authorize the most exalted and superstitious ideas of the regal character. But surely such in- terpreters have sacrificed truth to adulation. For in the first place, the expression, as used by St. Paul, is just as applicable to one kind of government, and to one kind of succession, as to another; — to the elective magistrates of a pure republic, as to an absolute hereditary monarch. In (he next place, it i- not affirmed of the supreme magistrate exclusively, that he is the ordinance of God ; the title, whatever it imports, belongs to every inferior officer of the state as much as to the highest. The divine right oi kings is, like the divine right of constables, — the law of the land, or even actual and (juiet possession of their office ; — a right ratified, we humbly presume, by the divine approbation, so long as obedience to their authority ap pears to be necessary or conducive to the common welfare. Princes are ordained of God by virtue only of that general dc-

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ctee, by which he assents and adds the sanction of his will to every law of society which promotes his own purpose, the com- munication of human happiness ; according to which idea of their origin and constitution (arid without any repugnancy to the words of St. Paul,) they are by St. Peter denominated the or- dinance oi man.

CHAPTER V*

OF CIVIL LIBERTY,

Civil liberty is the not being restrained by any law, bxit what conduces in a greater degree to the public welfare.

To do what we 'vill, is natural liberty ; to do what we will, fconsistently with the interest of the community to which we be- Ibng, is civil liberty ; that is to say, the Only liberty to be de- sired in a state of civil society.

1 should wish, no doubt, to be allowed to act in every instance as I pleased, but I refiect that the rest also of mankind would then do the same ; in which state of universal independence and self-direction, I should meet with so many checks and obstacles to my own will, fi'om the interference and opposition of other men's, that not only my happiness, but my liberty, would be less, than whilst the whole community were subjected. to the dominion of equal laws.

The boasted liberty of a state of nature exists only id a state of solitude. In every kind and degree of union and intercourse with his species, the liberty of the individual is augmented by the very laws which restrain it ; because he gains more from the limitation of other men's freedom than he suffers by the dimi- nution of his own. Natural liberty is the right of common up- on a waste ; civil liberty is the safe, exclusive, unmolested en- joyment of a cultivated inclosure. 41

322 CIVIL LIBERTY.

The definition of civil liberty above laid down imports, that the laws of a free people impose no restraints upon the private will of the subject, which do not conduce in a greater degree to the piiblic happiness ; by which it is intimated, 1st, That re- straint itself is an evil ; 2d/7/, That this evil ought to be over- balanced by some public advantage ; 3tlly, That the proof of this advantage lies upon the legislature ; 4thly, That a law be- ing found to produce no sensible good efifects, is a sufficient reason for repealing it, as adverse and injurious to the rights of a free citizen, without demanding specific evidence of its bad cflfects. This maxim might be remembered with advantage in a revision of many laws of this country ; especially of the game laws ; of the poor laws, so far as they lay restrictions upon the poor themselves ; of the laws against Papists and Dissenters; and, amongst a people enamoured to excess and jealous of their liberty, it seems a matter of surprise, that this principle has been so imperfectly attended to.

The degree of actual liberty always bearing, according t& this account of it, a reversed proportion to the number and se- verity of the restrictions which are either useless, or the utility of which does not outweigh the evil of the restraint, it lollows, that every nation possesses some, no nation perfect liberty ; that this liberty may be enjoyed under every form of government: that it may be impaired indeed, or increased, but that it is neither gained, nor lost, nor recovered, by any single regula- tion, change or event whatever : that, consequently, those pop- ular phrases which speak of a free people ; of a nation of slaves ; which call one revolution the era of liberty, or another the loss of it ; with many expressions of a like absolute form, are intel- ligible only in a comparative sense.

Hence also we are enabled to apprehend the distinction be- tween personal and civil liberty. A citizen of the freest repub- lic in the world may be imprisoned for his crimes ; and though his personal freedom be restrained by bolts and fetters, so long as bis confinement is the efiect of a beneficial public law, his civil

CIVIL LIBERTY. 323

liberty is not invaded. If this instance appear dubious, the following will be plainer. A passenger from the Levant, who upon his return to England, should be conveyed to a Lazaretto by an order of quarantine, with whatever impatience he might desire his enlargement, and though he saw a guard placed at the door to oppose his escape, or even ready to destroy his life if he attempted it, would hardly accuse government of encroach- ing upon his civil freedom ; nay, might perhaps rather congrat- ulate himself, that he had at length set his foot again in a land of liberty. The manifest expediency of the measure not only justifies it, but reconciles the most odious confinement with the perfect possession and the loftiest notions of civil liberty. And if this be true of the coercion of a prison, that it is compatible with a state of civil freedom, it cannot with reason be disputed of those more moderate constraints which the ordinary opera- tion of government imposes upon the will of the individual. It is not the rigor, but the inexpediency of laws and acts of author- ity, which makes them tyrannical.

There is another idea of civil liberty, which, though neither so simple nor so accurate as the former, agrees better with the signification, which the usage of common discourse, as well as the example of many respectable writers upon the sub- ject, has affixed to the term. This idea places liberty id security; making.it to consist, not merely in an actual ex- emption from the constraint of useless and noxious laws and acts of dominion, but in being free from the danger of having any such hereafter imposed or exercised. Thus, speaking <?f the political state of modern Europe, we are accustomed to say of Sweden, that she hath lost her liberty by the revolution vvhicfei lately took place in that country ; and yet v/e are assured that the people continue to be governed by the same laws as before, or by otliers which are wiser, milder, and more equitable. What then have they lost ? They have lost the power and functions of their diet ; the constitution of their states and or- 4ers, whose deliberation and concurrence were required in the

824 CIVIL LIBERTY.

formation and establishment of every public law; and thereby have parted with the security which they possessed against any attempts of the crown to harrass its subjects, by oppressive and useless exertions of prerogative. The loss of this security we denominate the loss of liberty. They have changed, not their laws, but their legislature ; not their enjoyment, but their safe- ty ; not their present burthens, but their prospects of future grievances ; and this we pronounce a change from the condition of freemen to that of slave* In like manner, in our own coun- try, the act of Parliament, in the reign of Henry the Eighth, which gave to the king's proclamation the force of law, has properly been called a complete and formal surrender of the lib- erty of the nation ; and would have been so, although no procla- mation were issued in pursuance of these new powers, or none but what was recommended by the highest wisdom and utility. The security was gone. Were it probable that the welfare and accommodation of the people would be as studiously, and as providently, consulted in the edicts of a despotic prince, as by the resolutions of a popular assembly, then would an absolute form of government be no less free than the purest deroecracy. The different degree of care and knowledge of the public in- terest which may reasonably be expected from the different form and composition of the legislature, constitutes the distinction, in respect of liberty, as well between these two extremes, as between all the intermediate modifications of civil government. The definitions which have been framed of civil liberty, and which have become the subject of much unnecessary altercation, are most of them adapted to this idea. Thus one political wri- ter makes the very essence of the subject's liberty to consist in his being governed by no laws but those to which he hath actu- ally consented ; another is satisfied with an mdirect and virtual consent ; another, again, places civil liberty in the separation of the legislative and executive offices of government ; another, in $he being governed by law that is by known, preconstituted, in- Dpxible rules of action and adjudication ; a fifth, in the exclusive

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right oi the people to tax themselves by their own representa.- tives ; a sixth, in the freedom and purity of elections of reprcr sentatives ; a seventh, in the control which the democratic part of the constitution possesses over the military establisment. Concerning which, and some other similar accounts of civjl lib- erty, it may be observed, that they all labour under one inac- curacy, viz. that they describe not so much liberty itself, as the safeguards and preservatives of liberty : for example, a man's being governed by no laws, but those to which he has given his tonsent, were it pi-acticable, is no otherwise necessary to the enjoyment of civil liberty, than as it affords a probable security against the dictation of laws, imposing superfluous restrictions upon his private will. This remark is applicable to the rest. The diversity of these definitions will not surprise us, when we consider that there is no contrariety or opposition amongst them whatever ; for by how many different provisions and precautions civil liberty is fenced and protected^ so many different accounts of liberty itself, all sufficiently consistent with truth and with each other, may, according to this mode of explaining the term, be framed and adopted.

Truth cannot be offended by a definition, but propriety may. In which view, those definitions of liberty ought to be re- jected, which, by making that essential to civil freedom which is unattainable in experience, inflame expectations that can nev- er be gratified, and disturb the public content with complaints, which no wisdom or benevolence of gov.ernment can remove.

It will not be thought extraordinary, that an idea, which oc- curs so much oftener as the subject of panegyric and careless declamation, than of just reasoning or correct knowledge, shoulii be attended with uncertainty and confusion : or that it should be found impossible to contrive a definition, which may includa the numerous, unsettled, and ever varying significations, whicl^ the term is made to stand for, and at the same time accord with ihe condition and experience of social life.

Of the two ideas that have been stated of civil liberty, whiclj-.

326 OF GOVERNMENT.

ever we assume, and whatever reasoning we found upon ihetn concerning its extent, nature, value, and preservation, this is the conclusion ; — that that people, government, and constitution, is the freest, which makes the best provision for the enacting of ex- pedient and salutary laws.

CHAPTER VI.

OF DIFFERENT FORMS OF GOVERNMENT.

AS a series of appeals must be finite, there necessarily ex- ists in every government a power from which the constitution has provided no appeal ; and which power, for that reason, may be termed absolute, omnipotent, uncontrollable, arbitrary, des- potic ; and is alike so in all countries.

The person or assembly in whom this power resides is called the sovereign, or the supreme power of the state.

Since to the same power universally appertains the office of es- tablishing public laws, it is called also the legislature of the state.

A government receives its denomination from the form of the legislature ; which form is likewise what we commonly mean by the constitution of a country.

Political writers enumerate three principal forms of govern- ment, which, however, are to be regarded rather as the simple forms, by some combination and intermixture of which all actu- al governments are composed, than as any where existing in a pure and elementary state. These forms are, —

I. Despotism, or absolute monarchy, where the legislature is in a single person.

II. An ARISTOCRACY, wherc the legislature is in a select as- sembly, the members of which either fill up by election the va- cancies in their own body, or succeed to their places in it by inheritance, property, tenure of certain lands, or in respect of some personal right or qualification.

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ril. A REPUBLIC, or democracy, where the people at large, either collectively or by representation, constitute the legislature.

The separate advantages of monarchy are, — unity of council, activity, decision, secrecy, despatch ; the military strength and energy which result from these qualities of government ; the ex- clusion of popular and aristocratical contentions ; the prevent, ing, by a known rule of succession, of all competition for the supreme power ; and thereby repressing the hopes, intrigues, and dangerous ambition of aspiring citizens.

The mischiefs, or rather the dangers, of monarchy are,— tyran- ny, expense, exaction, military domination ; unnecessary wars, waged to gratify the passions of an individual ; risk of the char- acter of the reigning prince ; ignorance in the governors, of the interests and accommodation of the people, and a consequent deficiency of salutary regulations ; want of constancy and uni- formity in the rules of government, and, proceeding from thence, insecurity of person and property.

The separate advantage of an aristocracy consists in the wisdom which may be expected from experience and education : — a permanent council naturally possesses experience ; and the. members who succeed to their places in. it by inheritance, wil! probably be trained and educated with a view to the stations which they are destined by their birth to occupy.

The mischiefs of an aristocracy are, — dissensions in the ru- ling orders of the state, which, from the want of a common su- perior are liable to proceed to the most desperate extremities ; oppression of the lower orders by the privileges of the higher, and by laws partial to the separate interest of the law-makers.

The advantages of a republic are, — liberty, or exemption from needless restrictions ; equal laws ; regulations adapted to the wants and circumstances of the people ; public spirit, frugal- ity, averseness to war ; the opportunities which democratic as- semblies afford to men of every description, of producing'their abilities and counsels to public observation, and the exciting thereby, and calling forth to the service of the commonwealth, the faculties of its best citizens.

«28 OF GOVERNMENT.

The evils of a republic are, — dissensions, tumults, faction ,• the attempts of powerful citizens to possess themselves of the empire ; the confusion, rage, and clamour, vphich are the inevi- table consequences of assembling multitudes, and of propounding questions of state to the discussion of the people ; the delay and disclosure of public counsels and designs ; and the imbecility of measures retarded by the necessity of obtaining the consent of members : lastly, the oppression of the provinces which are not admitted to participation in the legislative power.

A mixed government is composed by the combination of two or more of the simple forms of government above described ; — and in whatever proportion each form enters into the constitution of a government, in the same proportion may both the advanta- ges and evils, which we have attributed to that form, be expect- ed ; that is, those are the uses to be maintained and cultivated in each part of the constitution, and these are the dangers to be provided against in each. Thus, if secrecy and despatch be truly enumerated amongst the seperate excellencies of regal go- vernment, then a mixed government, which retains monarchy in one part of its constitution, should be careful that the other es- tates of the empire do not, by an officious and inquisitive inter- ference with the executive functions, which are, or ought to be, reserved to the administration of the prince, interpose delays, or divulge what it is expedient to conceal. On the other hand, if profusion, exaction, military domination, and needless wars, be justly accounted natural properties of a monarchy, in its sim- ple unqualified form ; then are these the objects to which, in a mixed government, the aristocratic and popular parts of the con- stitution ought to direct their vigilance ; the dangers against which they should raise and fortify their barriers ; these are de- partments of sovereignty, over which a [)Ower of inspection and control ought to be deposited with the people.

The same observation may be repeated of all the other advan- tages and inconveniences which have been ascribed to the seve- ral simple forms of government, and affords a rule whereby t<?

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'iirect the construction, improvement, and administration of mix- ed governments, — subjected, however, to this remark, that a quality sometimes results from the conjunction of two simple forms of government, which belongs not to the separate existence of either ; thus corruption, which has no place in an absolute monarchy, and little in a pure republic, is sure to gain admission into a constitution which divides the supreme power between an executive magistrate and a popular council.

An hereditary monarchy is universally to be preferred to an elective monarchy. The confession of every writer upon the subject of civil government, the experience of ages, the example of Poland, and of the Papal dominions, seem to place this amongst the few indubitable maxims which the science of >iolitics admits of. A crown is too splendid a prize to be conferred upon merit ; the passions or interests of the electors exclude all consideration of the qualities of the competitors. The same observation holds concerning Ihe appointment to any office which is attended with a great share of power or emolument. Nothing is gained by a popular choice worth the dissensions, tumults, and interruption of regular industry, with which it is inseparably attended. Add to this, that a king who owes his elevation to the event of a con- test, or to any other cause than a fixed rule of succession, will be apt to regard one part of his subjects as the associates of his fortune, and the other as conquered foes. Nor should it be forgotten, amongst the advantages of an hereditary monarchy, that, as plans of national improvement and reform are seldom broiight to maturity by the exertions of a single reign, a nation cannot attain to ''the degree of happiness and prosperity to which it is capable of being carried, unless an uniformity of counsels, a consistency of public measures and designs, be continued through a succession of ages. This benefit of a consistent scheme of government may be expected with greater probability where the supreme power descends in the same race, and where each prince succeeds, in some sort, to the aim, pursuits, and disposi- tion of his ancestor, than if the crown, at every change, devolve 42

330 OF GOVERx\M£NT.

upon a stranger, nliose first care will commonly be to pull doVtr* what his predecessor had built up, and to substitute systems of adminiitralion which must, in their turn, give way to the more favourite novelties of the next successor.

Aristocracies are of two kinds. — First, Where the power of the noLility belongs to them in their collective capacity alone : that is, where, although the government reside in an assembly of the order, yet the members of that assembly separately and individually possess no authority or privilege beyond the rest ot' the community : — this describes the constitution of Venice. «S'ec- ondlij^ Where the nobles are._5everally invested with great per- sonal power and immunities, and where the power of the senate is little more than the aggregated power of the individuals who compose it : — this is the constitution of Poland, Of these twa forms of government, the first is more tolerable than the last ; for, although ttie members of a senate should many, or even all of them, be profligate enough to abuse the authority of their sta- tions in the prosecution of private designs, yet, not being all un- der a temptation to the same injustice, not having all the same end to gain^ it would still be difficult to obtain the consent of a majority to any specific act of oppression which the iniquity of an individual might prompt him to propose : or, if the will were the same, the power is more confined ; one tyrant, whether the tyranny reside in a single person or a s«nate, cannot exercise oppression at so many places at the same time, as it may be carried on by the dominion of a numerous nobility over their respective vassals and dependents. Of all species of domina- tion, this is the most odious ; the freedom and satisfaction of private life are more constrained and harassed by it than by the most vexatious laws, or even by the lawless will of an arbitrary monarch, from whose knovvledg£, and from whose injustice, the greatest part of his subjects are removed by their distance, or concealed by their obscurity.

Europe exhibits more than one modern example, where the people, aggrieved by the exactions, or provoked by the enormi-

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ties, of their immediate superiors, have joined with the reigning prince in the overthrow of the aristocracy, deliberately exchan- ging their condition for the miseries of despotism. About the middle of the last century, the commons of Denmark, weary of the oppressions which they had long suffered from the Jiobles, and exasperated by some recent insults, presented themselves at the foot of the throne with a formal offer of their consent to es- tablish unlimited dominion in the king. The revolution in Swe- den, still more latelj^ brought about with the acquiescence, not to say the assistance, of the people, owed its success to the same cause, namely, to the prospect of deliverance that it afforded from the tyranny which their nobles exorcised under the old constitu- tion. In England, the people beheld the depression of the bar- ons, under the house of Tudor, with satisfaction, although they saw the crown ascending thereby to a height of power which no limitations that the constitution had then p>rovided were likely to confine* The lesson to be drawn from such events is this, that a mixed government, which admits a patrician order into its constitution, ought to circumscribe the personal privileges of the nobility, especially claims of hereditary jurisdiction and local authority, with a jealousy equal to the solicitude with which it -provides for its own preservation ; for, nothing so alienates the minds of the people from the government under which they live, by a perpetual sense of annoyance and inconveniency, or so pre- pares them for the practices of an enterprising prince or a fac- tious demagogue, as the abuse which almost always accompanies the existence of separate immunities.

Amongst the inferior, but by no means inconsiderable advan- tages of a DEMOCRATIC Constitution, or of a constitution in which the people partake of the power of legislation, the following should not be neglected : —

I, The direction which it gives to the education, studies, and pursuits of the superior orders of the community. The share which this has iii forming the public manners and national char- acter, is very important. In countries in which the gentry axe

332 OF GOVERNMENT.

excluded from all concern in the government, scaiceJy any thing is left which leads to advancement, but the profession of arms. They who do not addict themselves to this profession (and misera- ble must that country be, which constantly employs the military service of a great proportion of any order of its subjects !) are commonly lost by the mere want of object and destination ; that is, they fall, without reserve, into the most sottish habits of ani- mal gratification, or entirely devote themselves to the attainment of those futile arts and decorations which compose the business and recommendation of a court : on the other band, where the whole, or any effective portion of civil power is possessed by a popular assembly, more serious pursuits will be encouraged , purer morals, and a more intellectual character, will engage the public esteem ; those faculties which qualify men for delibera" tion and debate, and which are the fruit of sober habits, of early and long-continued application, will be roused and animated by the reward, which, of all others, most readily awakens the ambi- tion of the human mind — political dignity and importance.

II. Popular elections procure to the common people courtesy from their superiors. That contemptuous and overbearing insor lence, with which the lower orders of the community are wont to be treated by the higher, is greatly mitigated where the peo- ple have something to give. The assiduity with which their fa- vour is sought upon these occasions, serves to generate settled habits of condescension and respect ; and as human life is more embittered by affronts than injuries, whatever contributes to pro- cure mildness and civility of manners towards those who are most liable to suffer from a contrary behaviour, corrects with the pride, in a great measure, the evil of inequality, and deserves to be accounted amongst the most generous institutions of social life.

in. The satisfaction which the people in tree governments derive from the knowledge and agitation of political subjects 5 such as the proceedings and debates of the senate ; the conduct and character of ministers ; the revolutions, intrigues, and conr

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tentions of parties ; and, in general, from the discussion of pub- lic measures; questions, and occurrences. Subjects of this sort excite just enough of interest and emotion to afford a moderate engagement to the thoughts, witliout rising to any painful de- gree of anxiety, or ever leaving a fixed oppression upon the spirits :' — and what is this, but the aim and end of all those amusements, which compose so much of the business of life and of the value of riches ? For my part (and I believe it to be the case with most men who are arrived at the middle age, and oc- cupy the middle classes of life,) had I all the money which I pay in taxes to government, at liberty to lay out upon amuse- ment and diversion, I know not whether I could make choice of any in which I should find greater pleasure than what 1 receive from expecting, hearing, and relating public news ; reading parliamentary debates and proceedings ; canvass- ing the political arguments, projects, predictions, and intelli- gence, which are conveyed, by various channels, to every cor- ner of the kingdom. These topics, exciting universal curiosity, and being such as almost every man is ready to form and pre- pared to deliver an opinion about, greatly promote, and, 1 think, improve conversation. They render it more rational and more innocent ; they supply a substitute for drinking, gaming, Scan- dal, and obscenity. Now, the secrecy, the jealousy, the soli- tude, and precipitation of despotic governments, exclude all this. But the loss, you say, is trifling. I know that it is possi- ble to render even the mention of it ridiculous, by representing it as the idle employment of the most insignificant part of the nation, the folly of village-statesmen and coffee-house politi- cians : but I allow nothing to be a trifle which aiinisters to the harmless gratification of multitudes ; nor any order of men to be insignificant, Avhose number bears a respectable proportion to the sum of the v^'hole community.

We have been accustomed to an opinion, that a republican form of government suits only with the affairs of a small state ; which opinion is founded in tlie consideration, that unless the

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people, in every district of the empire, be admitted to a share in the national representation, the government is not, as tothctn, a republic ; that elections, where the constituents are numerous, and dispersed through a wide extent of country, are conducted with difliculty, or rather, indeed, managed by the intrigues and combination of a few, who are situated near the place of elec- tion, each voter considering his single suffrage as too minute a portion of the general interest to deserve his career attendance, much less to be worth any opposilipn to influence and applica- tion ; that whilst we contract the representation within a com- pass small enough to admit of orderly debate, the interest of the constituent becomes too small, of the representative too great. It is difficult also to maintain any connexion between them. He who represents two hundred thousand, is necessarily a stranger to the greatest part of those who elect him ; and when his inter- est amongst them ceases to depend upon an acquaintance with their persons and character, or a care and knowledge of their affairs ; when such a representative finds the treasures and hon- ©urs of a great empire at the disposal of a few, and himself one of the (ew, there is little reason to hope that lie will not prefer to his public duty those temptations of personal agrandizement which his situation offers, and which (he price of his vote will always purchase. All appeal to the people is precluded by the impossibility of collecting a sufficient proportion of their force and numbers. The factions and the unanimity of the senate are equally dangerous. Add to these considerations, that in a democratic constitution the mechanism is too complicated, and the motions too slow, for the operations of a great empire ; whose defence and government require execution and despatch, in proportion to the magnitude, extent, and variety of its inter- ests and concerns. There is weight, no doubt, in these reasons ; but much of the objection seems to be done away by the con- trivance of a federal republic, which, distributing the country into districts of a commodious extent, and leaving to each dis- irlci its internal legislation, reserves to a convention of the states

THE BRITISH CONSTITUTION. 335

the adjustment of their relative claims ; the levying, direction, and government of the common force of the confederacy ; tho requisition of subsidies for the support of this force; the making of peace and war ; the entering into treaties ; the regulation of foreign commerce ; the equalization of duties upon imports, so as to prevent the defrauding of the revenue of one province by smuggling articles of taxation from the bordei's of another ; and likewise, so as to guard against undue partialities in the encour- agement of trade. To what limits such a republic might, with- out inconveniency, enlarge its dominions, by assuming neigh- bouring provinces into the confederation ; or how far it is capa- ble of uniting the liberty of a small commonwealth with the safety of a powerful empire ; or whether, amongst co-ordinate powers, dissensions and jealousies would not be likely to arise, which, for want of a common superior, might proceed to fatal extremities, are questions, upon which the records of mankind do not authorize us to decide with tolerable certainty. The experiment is about to be tried in America upon a large scale.

CHAPTER ¥!!•

OF THE BRITISH CONSTITUTION.

BY the CONSTiTUTroN of a country, is meant so much of its law, as relates to the designation and form of the legislature ; the rights and functions of the several parts of the legislative body ; the construction, office, and jurisdiction of courts of jus- tice. The constitution is one principal division, section, or title, of the code of public laws ; distinguished from the rest only by the superior importance of the subject of which it treats. Therefore the terms constitutional and xmconstitutional, mean legal and illegal. The distinction and ideas which these terms denote, are founded in the same authority with the law of the

330 THE BRITrSH COXSTITUTION.

land upon any other subject ; nnd to be ascertained by the satrifi inquiries. In England, the system of public jurisprudence isi made up of acts of parliament, of decisions of courts of law, and of immemorial usages : consequently, these are the principles ol ^A^iich the English constitution itself consists, the sources from which all our knowledge of its nature and limitations is tobe de- duced, and the authorities to which all appeal ought to be made, and by which every constitutional doubt and question can alone be decided. This plain and intelligible definition is the more necessary to be preserved in our thoughts, as some writers upon the subject absurdly confound what is constitutional with what is expedient ; pronouncing forthwith a measure to be unconsti- tutional, which they adjudge in any respect to be detrimental or dangerous ; whilst others, again, ascribe a kind of transcend- ent authority, or mysterious sanctity, to the constitution, as if it were founded on some higher original than that which gives force and obligation to the ordinary laws and statutes of the realm, or were inviolable on any other account than its in- trinsic utility. An act of parliament in England can never be unconstitutional, in the strict and proper acceptation of the term ; in a lower sense it may, viz. when it ipilitates with the spirit, contradicts the analogy, or defeats the provision of other laws, made to regulate the form of government. Even that flagitious abuse of tlitir trust, by which a parliament of Henry the Eighth conferred upon the king's proclamation the authority of law, was unconstitutional only in this latter sense.

Most of those who treat of tiie British constitution, consider it as a scheme of government formally planned and contrived by our ancestors, in some certain aera of our national history, and as set up in pursuance of such regular plan and design. Some- thing of this sort is secretly supposed, or referred to, in the expressions of those who speak of the " principles of the con- stitution," of bringing back the constitution to its " first princi- ples," of restoring it to its " original purity," or "primitive " model." Now, this appears to me an erroneous conception of

THE BRITISH CONSTITUTION. 337

the subject. No such plan was ever formed, consequently no such first principles, original model, or standard, exist : I mean, there never was a date or point of time in our history, when the go- vernment of England was to be set up anew, and when it was re- ferred to any single person, or assembly, or committee, to frame a charter for the future government of* the country; or when a constitution so prepared and digested, was by common consent received and established. In the time of the civil wars, or rather between the death of Charles the First and the restoi'ation of his son, many such projects \Vere published, but none were carried into execution. The great Charter, and the Bill of Rights, were wise and strenuous efforts to obtain security against certain abu- ses of regal power, by which the subject had been formerly ag- grieved ; but these were, either of them, much too partial modi- fications of the constitution, to give it a new original. The con- stitution of England, like that of most countries in Europe, hath grown out of occasion and emergency ; from the various policy of different ages ; from the contentions, successes, interests, and opportunities of different orders and parties of men in the com- munity. It resembles one of those old mansions, which, instead of being built all at once, after a regular plan, and according to the rules of architecture at present established, has been reared in different ages of the art, has been altered from time to time, and has been continually receiving additions and repairs suited to the taste, fortune, or conveniency of its successive proprie- tors. In such a building, we look in vain for the elegance and proportion, for the just order and correspondence of parts, which we expect in a modern edifice : and v-hich external symmetry, after all contributes much more perhaps to the amusement of the beholder, than the accommodation of the inhabitant.

In the British, and possibly in all other constitutions, there exists a wide difference between the actual state of the govern- ment and the theory. The one results from tiiC other ; but still they are different. When we contemplate t!;e theory of the British government, we see the king invested with the most ab- 43

338 THE BRITISH CONSTITUTION.

solute personal impunity ; with a power of rejecting laws whicFi have been resolved upon by both houses of parliament ; of con- fering by iiis charter, upon any set or succession of men he pleases, the privilege of sending representatives into one house of parliament, as by his immediate appointment he can place whom he will in the other. What is this, a foreigner might ask, but a more circuitous despotism ? Yet, when we turn our attention from the legal existence, to the actual exercise of roy- al authority in England, we see these formidable prerogatives dwindled into mere ceremonies ; and, in their stead, a sure and commanding influence, of which the constitution, it seems, is to- tally ignorant, growing out of that enormous patronage, which tije increased extent and opulence of the empire has placed in the disposal of the executive magistrate.

Upon questions of reform, the habit of reflection to be en- couraged, is a sober comparison of the constitution under which we live, not with models of speculative perfection, but with the actual chance of obtaining a better. This turn of thought will generate a political disposition, equally removed from that pue- rile admiration of present establishments, which sees no fault, and can endure no change, and that distempered sensibility, which is alive only to perceptions of inconveniency, and is too impatient lo be delivered from the uneasiness which it feels, to compute either the peril or expense of the remedy. Political innovations commonly produce many effects beside those that are intended. The direct consequence is often the least im- portant. Incidental, remote, and unthought of evils or advan- tages, frequently exceed the good that is designed, or the incon- veniency that is foreseen. It is from the silent and unobserv'ed operation, from the obscure progress of causes set at work for different purposes, that the greatest revolutions take their rise. When Elizabeth, and hor immediate successor, applied them- selves to the encouragement and regulation of trade by many wise laws, they knew not that, together with wealth and indus- try, they were diffusing a consciousness of strength and inde-

THE BRITISH CONSTITUTION. 339

pendency, which would not long endure, under the forms of a mixed government, (he dominion of arbitrary princes. When it was debated whether the mutiny-act, the law by which the artny is governed and maintained, should be temporary or per- petual, little else probably occurred to the advocates of an an- nual bill than the expediency of retaining a control over the most dangerous prerogative of the crown — the direction and command of a standing army ; whereas, in effect, this single reservation has altered the whole frame and quality of the Brit- ish constitution. For since, in consequence of the military sys- tem which prevails in neighbouring and rival nations, as well as on account of the internal exigencies of government, a standing army has become essential to the safety and administration of the empire, it enables parliament, by discontinuing this necessary provision, so to enforce its resolutions upon any other subject, as to render the king's dissent to a law, which has received the approbation of both houses, too dangerous an experiment any longer to be advised. A contest between the king and parlia- ment cannot now be persevered in without a dissolution of the government. Lastly, when the constitution conferred upon the crown the nomination to all employments in the public service, the authors of this arrangement were led to it, by the obvious propriety of leaving to a master the choice of his servants ; and by the manifest inconveniency ot engaging the national council, upon every vacancy, in those personal contests which attend elections to places of honour and emolument. Our ancestors did not observe, that this disposition added an influence to the regal office, which, as the number and value of public employ- ments increased, would supercede in a great measure the forms, and change the character of the ancient constitution : They knew not, what the experience and reflection of modern ages has discovered, that patronage universally is power ; that he who possesses in a sufficient degree the means of gratifying the desires of mankind after wealth and distinction, by whatever checks and forms bis authority may be limited or disguised.

340 THE BRITISH CONSTITUTION.

will direct the management of public affairs. Whatever be the mechanism of the political engine, he will guide the motion. These instan«es are adduced to illustrate the proposition we laid down, that, in politics, the most important and permanent effects have, for the most part, been incidental and unforeseen ; and this proposition we inculcate for the sake of the caution which it teaches, that changes ought not to be adventured upon without a comprehensive discernment of the consequences, — without a knowledge, as well of the remote tendency, as of the immediate design. The courage of a statesman should resem- that of a commander, who, however regardless of personal dan- ger, never forgets, that, with his own, he commits the lives and fortunes of a multitude ; and who does not consider it as any proof of zeal or valour, to stake the safety of other men upon the success of a perilous or desperate enlerprize.

There is one end of civil government peculiar to a good con- stitution, namely, the happiness of its subjects ; there is anoth- er end essential to a good government, but common to it with many bad ones, — its own preservation. Observing that the best form of government would be defective, which did not provide for its own permanency, in our political reasonings we consider all such provisions as expedient ; and are content to accept as a sufficient reason for a measure, or law, that it is necessary or conducive to the preservation of the constitution. Yet, in truth, such provisions are absolutely expedient, and such an excuse fi- nal, only whilst the constitution is worth preserving ; that is, un- til it can be exchanged for a better. I premise this distinction, because many things in the English, as in every constitution, are to be vindicated and accounted for solely from their tenden- cy to maintain the government in its present state, and the sev- eral parts of it in possession of the powers which the constitution has assigned to them ; and because 1 would wish it to be re- marked, that such a consideration is always subordinate to another, — the value and usefulness of the constitution itself. 'Pif GovernmeiU of England, which has been s.omclimes calv

THE BRITISH CONSTITUTION. 341 •

kd a raixed government, sometimes a limited monarchy, is formed by a combinatioD of the three regular species of govern- ment,— the monarchy, residing in the King ; the aristocracy, in the House of Lords ; and the republic, being represented by the House of Commons. The perfection intended by such a scheme of government is, to unite the advantages of the several simple forms, and to exclude the inconveniences. To what de- gree this purpose is attained, or attainable, in the British con- stitution ; wherein it is lost sight of or neglected ; and by what means it may in any part be promoted with better success, the reader will be enabled to judge, by a separate recollection of these advantages and inconveniences, as enumerated in the preceding chapter and a distinct application of each to the po- litical condition of this country. ^Ye will present our remarks upon the subject in a brief account of the expedients by which the British constitution provides, —

1st, For the interest of its subjects.

2dly, For its own preservation.

The contrivances for the first of these purposes are the fol- lowing :

In order to promote the establishment of salutary public laws, every citizen of the state is capable of becoming a member of the senate ; and every senator possesses the right of propound- ing to the deliberation of the legislature whatever law he pleases.

Every district of the empire enjoys the privilege of choosing representatives, informed of the interests, and circumstances, and desires of their constituents, and entitled by their situation to communicate that information to the national council. The meanest subject has some one whom he can call upon to bring forward his complaints and requests to public attention.

By annexing the right of voting for members of the House of Commons to diflerent qualifications in dift'erent -places, each or- der and profession of men in the community become virtually .represented; that is, men of all orders and professions, states. men, courtiers, country getitlemen, lawyers, merchants, manu-

34 i THE BRITISH CONSTITUTIOxX.

faclureis, soldiers, sailors interested in the prosperity, and ex- perienced in the occupation of their respective professions, ob- tain seats in parliament.

The elections, at the same time, are so connected with the influence of landed property, as to afford a certainty that a con- siderable number of men of great estates will be returned to parliament ; and arc also so modified, that men the most emin- ent and successful in their respective professions, are the most likely, by their riches, or the weight of their stations to prevail in these competitions.

The number, fortune, and quality of the members ; the vari- ety of interests and characters amongst them; above all, the temporary duration of their power, and the change of men which every new election produces, are so many securities to the public, as well against the subjection of their judgments to ?ny external dictation, as against the formation of a junto in their own body, sufficiently powerful to govern their decisions.

The representatives are so intermixed with the constituents, and the constituents with the rest of the people, that they can- not, without a partiality too flagrant to be endured, impose any burthen upon the subject in which they do not share themselves ; iior scarcely can they adopt an advantageou:? regulation, in which their own interests will not participate of the advantage.

The proceedings and debates of parlianunt, and the parlia- mentary conduct of each representative, are known by the pco- ]>le at largo.

The representative is so far dependent upon the constituent, and political importance upon public favour, that a senator most effectually recommends himself to eminence and advance- ment in the state, by contriving and patronizing laws of public utility.

When intelligence of the condition, wants, and occasions of the people, is thus collected from every quarter; when such a variety of invention, and so many understandings are set at work upon the subject ; it may be presumed, that the most el-

THE BRITISH CONSTITUTION. 343

igible expedient, remedy, or improvement, will occur to some one or other ; and when a wise council, or beneficial regula- tion, is once suggested, it may be expected, from the dispositiort of an assembly so constituted as the British House of Commons is, that it cannot fail of receiving the approbation of a majority.

To prevent those destructive contentions for the supreme power, which are sure to take place where the members of the state do not live under an acknowledged head, and a known rule of succession ; to preserve the people in tranquillity at home, by a speedy and vigorous execution of the laws; to protect their interest abroad, by strength and energy in military operations, by those advantages of decision, secrecy, and despatch, which belong to the resolutions of monarchical councils : — for these purposes, the constitution has committed the executive government to the administration and limited authority of an hereditary king.

In the defence of the empire ; in the maintenance of its power, dignity, and privileges, with foreign nations ; and in the providing for the general administration of municipal justice, by a proper choice and appointment of magistrates, the incli- nation of the king and of the people usually coincide : in this part, therefore, of the regal office, the constitution entrusts the prerogative with ample powers.

The dangers principally to be apprehended from regal govem- ment relate to the two articles of taxation and punishment. In every form of government, from which the people are excluded, it is the interest of the governors to get as much, and of the govern- ed to give as little, as they can : the power also of punishment, in the hands of an arbitrary prince, oftentimes becomes an engine, of extortion, jealousy, and revenge. Wisely, therefore, hath the British constitution guarded the safety of the people, in these two points, by the most studious precautions.

Upon that of taxation every law which, by the remotest con- struction, may be deemed to levy money upon the property of the subject, must originate, that is, must first be proposed and assented to in the House of Commons : by which regulation, ac-

344 THE BRITISH CONSTITUTION*.

companying the weight which that assembly possesses in all its functions, the levying of taxes is almost exclusively reserved to the popular part of the constitution, who, it Is presumed, will not tax themselves, nor their tellow-suhjects without being first convinced of the necessity of the aids which they grant.

The application also of the public supplies is watched with the same circumspection as the assessment. Many taxes are an- nual ; the produce of others is mortgaged, or appropriated to specific services ; the expenditure of all of them is accounted for to the House of Commons ; as computations of the charge of the purpose for which they arc wanted, are previously submitted to the same tribunal.

In the infliction of punishment, the power of the crown, and of the magistrate appointed by the crown, is confined bv the most precise limitations : the guilt of the offender must be pro- nounced by twelve men of his own order, indifferently chosen out of the county where the offence was committed ; the punish- ment, or the limits to which the punishment may be extended, are ascertained, and affixed to the crime, by laws which know not the person of the criminal.

And whereas the arbitrary or clandestine seizure and con- finement of the person is the injury most to be dreaded from the strong hand of the executive government, because it deprives the prisoner at once of protection and defence, and delivers him into the power, and to the malicious or interested designs of his enemies ; the constitution has provided against this danger with extreme solicitude. The ancient writ of habeas-corpus, the ha- beas-corpus act of Charles the Second, and the practice and de- terminations of our sovereign courts of justice founded upon these laws, afford a complete remedy for every conceivable case of illegal imprisonment.*

* Upon complaint in writing by, or on liehalf of, any person in confine- ment, to any of the four courts of Westminster Hall, in term time, or to Ithe Lord Chancellor, or one of the Judges, in the vacation ; and upon a probable reaioa being suggested to question the legality of the detention,

THE BRITISH CONS^HTUTION. 345

Treason being that charge, under colour of which the destruc- tion of an obnoxious individual is often sought : and government being at all times more immediately a party in the prosecution ; the law, beside the general care with wliich it watches over the safety of the accused, in this case, sensible of the unequal con- test in which the subject is engaged, has assisted his defence with extraordinary indulgences. By two statutes, enacted since the Revolution, every person indicted for high treason shall have a copy of his indictment, a list of the witnesses to be produced, and of the jury impannelled, delivered to him ten days before the trial ; he is also permitted to make his defence by counsel ; — privileges which are not allowed to the prisoner, in a trial for any other crime : and, wliat is of more importance to the party than all the rest, the testimony of two witnesses, at the least, is required to convict a person of treason ; whereas, one positive witness is sufficient in almost every other species of accusation.

We proceed, in the second place, to inquire in what manner the constitution has provided for its own preservation ; that is, in what manner each part of the legislature is secured in the ex- ercise of the powers assigned to it, from the encroachment of t^ie

a writ is issued to the person in whose custody tlie complainant is alleged to be, commanding; him within a certain limited and short time to pro- duce the body of the prisoner, and the authority under which he is de- tained. Upon the retui-n of the writ, strict and instantaneous obedience to which is enforced by very severe penalties, if no lawful cause of im- prisonment appear, the court or jud;je before whom the prisoner is brought, is authorized and bound to discharge him ; even though he may have been committed by a secretary, or other high officer of state, by the privy council, or by the king in person : so that no subject of this realm can be held in conlinement by any power, or imder any pretence whatever, pro- vided he can find means to convey his complaint to one of the four courts of Westminster Hall, or during their recess, to any of the judges of the same, unless all these several tribunals agree in determining his imprison- ment to be legal. He may make application to them in succession ; and. if one out of th« number be found, who thinks the prisoner entitled to his nhfrty. Iliat one po-sc'^^es aulhoritv to restore it to him, ■11

340 THE BRITISH CONSTITUTION.

other parts ; this security is sometimes called llie balance of the constitxilion ; and the political equilibrium, uliich this jjhrase denotes, consists in two contrivances ; — a balance of power, and a balance ot' interest. By a Imlance of power is meant, thnt there is no power possessed by one part of the legislature, the abuse or excess of which is not checked by some antagonist pow- er, residing in another part. Thus the power of the two houses of parliament to frame laws, is checked by the kinc!:''s negative ; that, if laws subversive of regal government should obtain the consent of parliament, the reigning prince, by interposing his prerogative, may save the necessary rights and authority of his station. On the other hand, the arbitrary application of this negative is checked by (he privilege which parliament possesses, of refusing supplies of money to the exigencies of the king's ad- ministration. The conslitutiona! maxim, " that the king can do " no wrong," is balanced by another maxim, not less constitu- tional, "that the illegal commands of the king do not iustify " those who assist, or concur, in carrying them into execution :"' and by a second rule, subsidiary to this, " that the acts of the " crown acquire not any legal force, until authenticated by the '• subscription of some of its great officers." The wisdom of this contrivance is worthy of observation. As the king could not bp punished without a civil war, the constitution exempts his person from trial or account ; but, lest this impunity should encourage a licentious exercise of dominion, various obstacles are opposed to the private will of the sovereign, when directed to illegal ob- jects. The pleasure of the crown must be announced with cer- tain solemnities, and attested by certain officers of state. In some cases, the royal order must be signified by a secretary of state ; in others, it must pass under the privy seal ; and in ma- nv, under the great ."cnl. And when the king's command is reg- ularly published, no mischief can be achieved by it, without the ministry and compliance of those to whom it is directed. Now ;^ill who either concur in an illegal order, by authenticating its publication with their seal or subscription, or who assist in car-

THE BRITISH CONSTITUTION. 347

rying it into execution, subject themselves to prosecution and punishment for the part they have taken ; and are nut permitted to plead or produce the command of the king, in justification ot their obedience.* And, that the crown may not protect its ser- vants in a criminal submission to their master's desires, by the power which in general belongs to its authority, of pardoning of- fences, and of remitting the sentence of the law prosecutions by impeachment, which is the usual way of proceeding against of- fenders of this sort, are excepted out of that prerogative. But further ; the power of the crown to direct the military force of the kingdom, is balanced by the annual necessity of resorting to parliament for the maintenance and government of that force. The power of the king to declare war, is checked by the pri^i'i- lege of tlie House of Commons to grant or withhold the supplies by which the war must be carried on. The king's choice of his ministers is controlled by the obligation he is under of appoint- ing those men to oflices in the state, who are found capable of managing the affairs of his government, with the two houses of parliament. Which consideration imposes such a necessity upon the crown, as hath in a great' measure subdued the influence of favouritism ; insomuch that it is become no uncommon spectacle in this country, to see men promoted by the king to the highest •offices and richest preferments which he has in his power to be- stow, who have been distinguished by their opposition to his personal inclinations.

* Amongst the cheeks which parliament hold over the administration •f public affairs, I forbear to mention the practice of addressing the king, to know by whose advice he resolved upon a particular measure ; and of punishing the authors of that ad vice for the counsel they had given. Not because I think this method either unconstitutional or improper ; but for this reason — that it does not so much subject the king to the control of parliament, as it supposes him to be already in subjection. For if the king were so far out of the reach of the resentment of the House of Commons, 39 to be able with safety to refuse the information requested, or to take upon himself the responsibility inquired after, there must be an rai el all proceedings founded iu this mode of spplicalion.

318 THE BRITISH CONSTITUTION.

By the balance of interest, which accomp;mies and gives efFi- cncy to the balance of po-wer, is meant this : — that the respective interests ot the three states of the empire are so disposed and ad- justed, that whichever of the three shall attempt any encroach- ment, the other two will unite in resisting it. If the king should endeavour to extend his authority, by contracting the power and privileges of the Commons, the House of Lords would see their (nvn dignity endangered by every advance wiiich the crown made to independency upon the resolutions of parliament. The admission of arbitrary power is no less formidable to the grand- eur of the aristocracy than it is fatal to the liberty of the repub- lic ; that is, it would reduce the nobility from the hereditary share they possess in the national councils, in which their real greatness consists, to the being made a part of the empty pa- geantry of a despotic court. On the other hand, if the House of Commons should intrench upon the distinct province, or usurp the established prerogative of the crown, the House of Lords would receive an instant alarm from every new stretch of popu- lar power. In every contest in w'hich the king may be engaged with the representative body, in defence of his established share of authoritv, he will find a sure ally in the collective power of the nobilit}'-.

An attachment to the monarchy, fiom which they derive their own distinction ; the allurements of a court, in tlie habits and with the sentiments of which they have been brought up ; their hatred of equality, and of all levelling pretensions which may ultimately affect the privileges, or even the existence of their order ; in short, every principle and every prejudice which are wont to actuate human conduct, will determine their choice to the side and support of the crown. Lastly, if the nobles them- selves should attempt to revive the superiorities which their an- cestors exercised under the feudal constitution, the king and the people would alike remember, how the one had been insulted, and the other enslaved, by that barbarous tyranny. They would forget the natural opposition of their views and inclinations,

THE BRITISH CONSTITUTION. 349

when they saw themselves threatened with a return of a domin- ation, which was odious and intolerable to both.

The reader will have observed, that in describing the British constitution, little notice has been taken of the House of Lords. The proper use and design of this part of the constitution, are the following : First to enable the king, by his right of bestow- ing the peerage, to reward the servants of the public, in a man- ner most grateful to them, and at a small expense to the nation ; secondly. To fortify' the power and to secure the stability of regal government, by an order of men naturally allied to its in- terests ; and, thirdly, To answer a purpose, which though of superior importance to the other two, •does not occur so readily to our observation ; namely to stem the progress of popular fury. Large bodies of men are subject to sudden phrensies. Opinions are sometimes circulated amongst a multitude without proof or examination, acquiring confidence and reputation merely by be- ing repeated from one to another ; and passions founded upon these opinions, diffusing themselves with a rapidity that can nei- ther be accounted for nor resisted, may agitate a country with the most violent commotions. Now, the only way to stop the fermentation, is to divide the mass ; that is, to erect different orders in the community, with seperate prejudices and interests. And this may occasionally become the use of an hereditary no- bility, invested with a share of legislation. Averse to the pre- judices which actuate the minds of the vulgar ; accustomed to contemn the clamour of the populace ; disdaining to receive laws and opinions from tlieir inferiors in rank, they will oppose resolu- tions which are founded in the folly and violence of the lower part of the community. Was the voice of the people always dicta- ted by reflection ; did every man, or even one man in a hundred, think for himself, or actually consider the measure he was about to approve or censure ; or even were the common people toler- ably steadfast in the judgment which they formed, I should hold the interference of a superior order not only superfluous but wrong ; for when every thing is allowed to difference of rank and educa-

360 THE BRITISH CONSTITUTION.

tion, whicli tlic actual slate of these advantages des-erves, that, after all, is most likely to be right and expedient, which appears to be so to the separate judgment and decision of a great major- ity of the nation ; at least, that, in general, is right /or tlieiv, .which is agreeable to their fixed opinions and desires. But when we observe what is urged as the public opinion, to be, in truth, the opinion only, or perhaps the feigned profession, of a few crafty leaders ; that the numbers who join in the cry, serve only to swell and multiply the sound, without any acces- sion of judgment, or exercise of understanding ; and that often- times the wisest counsels have been thus overborne l)y tumult and uproar ; — we may cmiceive occasions to arise, in which the commonwealth may be saved by the reluctance of the nobility to adopt the caprices, or to yield to the vehemence of the com- mon people. In expecting this advantage from an order of no- bles, we do not suppwse the nobility to be more unprejudiced than others ; we only suppose that their prejudices will be dif- ferent from, and may occasoinally counteract those of others.

If the personal privileges of the peerage, which are usually so many injuries to the rest of the community, be restrained, I see little inconvenicncy in the increase of its number : for, it is only dividing the same quantity of power amongst more hands, which is rather favourable to public freedom than otherwise.

The admission of a small number of ecclesiastics into the House of Lords, is but an equitable compensation to (he clergy for the exclusion of their order fro'm'the House of Commons. They are a set of men considerable by their number and pro- perty, as well as by their influence, and the duties of their sta- tion ; yet whilst every other profession has those amongst the national representatives, who, being conversant in the same oc- cupation, are able to state, and naturally disposed to support, the rights and interests of the class and calling to which they be- long, the clergy alone are deprived of this advantage : which hardship is made up to them by introducing the prelacy into parliament ; and if bishops, from gratitude or expectation, be

THE BRITLSH CONSTITUTION. 351

more obsequious to the will of the crown than those who possess great temporal inheritances, they are properly inserted into that part of the constitution, from which much or frequent resistance to the measures of government is not expected.

I acknowledge, that I perceive no sufficient reason for exempt- ing the persons of members of either house of parliament from arrest for debt. The counsels or suffrage of a single senator, especially of one who in the management of his own affairs may justly be suspected of a want of prudence or honesty, can sel- dom be so necessary to those of the public, as to justify a de- parture from that wholesome policy, by which the laws of a commercial state punish and stigmatize insolvency. But what- ever reason may be pleaded for their personal immunity, when this privilege of parliament is extended to domestics and retain- ers, or when it is permitted to impede or delay the course of ju- dicial proceedings, it becomes an absurd sacrifice of equal jus- tice to imaginary dignity.

There is nothing in the British constitution so remarkable as the irregularity of the popular representation. The House of Commons consists of five hundred and forty-eight members, of whom two hundred are elected by seven thousand constituents ; so that a majority of these seven thousand, without any reasona- ble title to superior weight and influence in the state, may, un- der certain circimis'ances, decide a question against the opinion of as many millions. Or to place the same object in another point of view: If my estate be situated in one county of the kingdom, I possess the ten-thousandth part of a single represen- tative ; if in another, the thousandth ; if in a particular district, I may be one in twenty who choose two representatives ; if in a still more favoured spot, I may enjoy the right of appointing two myself. If I have been born, or dwell, or have served an ap- prenticeship in one town, I am represented in the national as- sembly by two deputies, in the choice of whom I exercise an actual and sensible share of power ; if accident has thrown my birth, or habitulion. or service, into another town, I have no rep-

352 THE ERITISH CONSTIJUTION.

rescnlativc at all, nor more power or concern in the ek-ctiun of those who make the laws by which 1 am governed, than it' I w:t.-; a subject of the grand Signior : — and this partially subsists witii- out any pretence whatever of merit or of propriety, to justify the preference of one place to another. Or, thirdly, To de- scribe the state of national representation as it exists, in reality, it may be affirmed, I believe, with truth, that about one half ot the House of Commons obtain their seats in that assembly by the election of the people, the other half by purchase, or by the nomination of single proprietors of great estates.

This is a flagrant incongruity in the constitution ; but it is one of those objections which strike most forcibly at first sight. The effect of all reasoning upon the subject is to diminish the first impression : on which account it deserves the more attentive ex- amination, that we may be assured, before we adventure upon a reformation, that the magnitude of the evil justifies the danger of the experiment. In a few remarks that follow we would be understood, in the first place, to decline all conference with those who wish to alter the form of government of these kingdoms. The reformers with whom we have to do, are they who, whilst they change this part of the system, would retain the rest. If any Englishman expects more happiness to his country under a republic, he may very consistently recommend a new-modelling of elections to parliament ; because, if the king and House of Lords were laid aside, the present disproportionate representa- tion would produce nothing but a confused and ill-digested olig- archy. In like manner we wave a controversy with those wri- ters who insist upon a representation as a natural right ;* we consider it so far only as a right at all, as it conduces to public

* If this right be natural, no doubt it must be equal ; and the right, wc may add, of one sex as well as of the other. Whereas every plan of rep- resentation that we have heard of, begins by excluding the votes of wo- men ; thus cutting off at a single stroke, one half of the public from a right T^hich is asserted to be inherent in all ; a right too, as some repre- jeut it, not only universal, but unalienable and indefeasible.

^HE BRITISH CONSTITUTION. 353

tJtility ; that is, as it contributes to the establishment of good laws, or as it secures to the people the just administration of these laws. These effects depend upon the disposition and abilities of the national counsellors. Wherefore, if men the most likely by their qualifications to know and to promote the public interest, be actually returned to parliament, it signifies little who return them. If the properest persons be elected, what matters it by whom they are elected ? At least, no pru- dent statesman would subvert long established, or even settled rules of representation, without a prospect of procuring wiser or better representatives. This, then, being well observed, let us, before we seek to obtain any thing more, consider duly ^vhat we already have. We have a House of Commons composed of five hundred and forty- eight members, in which number are found the most considerable landholders and merchants of the kingdom; the heads of the army, the navy, and the law; the occupiers of great offices in the state ; together with many pri- vate individuals, eminent by their knowledge, eloquence or ac- tivity. Now, if the country be not safe in such hands, in whose may it confide its interests ? If such a number of such men be liable to the influence of corrupt motives, what assembly of men v.'ill be secure from the same danger ? Does any ne^v scheme of representation promise to collect together more wisdom, or to produce firmer integrity ? In this view of the subject, and attending not to ideas of order and proportion, (of which- i^iany minds are much enamoured,) but to eflfects alone, we may dis- cover just excuses for those parts of the present representation, which appear to a hasty obierver most exceptionable and ab- surd. It should be remembered, as a maxim extremely -appli- cable to this subject, that no order or assembly of men whatever can long maintain their place and authority in a mixed govern- ment, of which the members, do not individually possess a re- spectable share of personal importance. Now, whatever may be the defects of the present arrangement, it infallibly secures a great weight of property to the House of Commons, by render- 45

351 THE BRITISH CONSTITUTION.

iiig many seals in thai house accessible to men of lai"ge fortunes, and to such men alone. By which means, those characters arc engaged in the defence of the separate rights and interests of this branch of the legislature, that are best able to support its claims. The constitution of most of the small boroughs, espe- cially the burgage tenure, contributes, though undesignedly, to the same effect ; for the appointment of the representatives we find commonly annexed to certain great inheritances. Elec- tions purely popular are in this respect uncertain : in times of tranquility, the natural ascendency of wealth will prevail ; but when the minds of men are inflamed by political dissensions, this influence often yields to more impetuous motives. The variety of tenures and qualifications upon which the right of vo- ting is founded, appears to me a recommendation of the mode which now subsists, as it tends to introduce into parliament a corresponding mixture of characters and professions. It hau been long observed, that conspicuous abilities are most fre- quently found with the representatives of small boroughs. And this is nothing more than what the laws of human conduct might teach us to expect : when such boroughs are set to sale, those men are likely to become purchasers, who are enabled by their talents to nlakc the best of their bargain ; when a seat is not sold, but given by the opulent proprietor of a burgage tenure, the patron finds his own interest consulted by the reputation and abilities of the nrember whom he nominates. If certain of the nobility hold the appointment of some part of the House of Commons, it serves to maintain that alliance between the two branches of the legislature, which no good citizen would wish to see dissevered ; it helps to keep the government of the coun- try in the House of Commons, in which it would not perhaps long continue to reside, if so powerful and wealthy a part of the nation as the peerage compose, were excluded from all share and interest in its constitution. If there be a (ew boroughs so circumstanced as to lie at the disposal of the crown, whilst the number of such is known and small, they may be tolerated with

THE BRITISH CONSTITUTION, 363

little danger. For where would be the impropriety, or the ia- conveniency, if the king at once should nominate a limited num- ber of his servants to seats in parliament ? or, what is the same thing, if seats in parliament were annexed to the possession of certain of the most efficient and responsible offices in the state ! The present representation, after all these deductions, and un- der the confusion in which it contessediy lies, is still in such a degree popular, or rather the representatives are so connected with the mass of the community by a society of interests and passions, that the will of the people, when it is determined, per- manent, dtnd general, almost always at length prevails.

Upon the whole, in the several plans which have been sug- gested, of an equal or a reformed representation, it will be dif- ficult to discover any proposal, that has a tendency to throw more of the business of the nation into the House of Commons, or to collect a set of men more fit to transact that business, or in general more interested in the national happiness and pros- perity. One consequence, however, may be expected from these projects, namely, " less flexibility to the influence of the crown." And since the diminution of this influence is the de- clared and perhaps the sole design of the various schemes that have been produced, whether tor regulating the elections, con- tracting the duration, or for purifying the constitution of parlia- ment by the exclusion of placemen and pensioners ; it is obvi- ous, and of importance to remark, that the more apt and natur- al, as well as the more safe and quiet way of attaining the same <.'nd, would be by a direct reduction of the patronage of the crown, which might be effected to a certain extent without hazarding further consequences. Superfluous and exorbitant emoluments i){ office may not only be suppressed tor the present ; bi:t pro- visions of law be devised, which should for the future restrain within certain limits the number and value of the offices in the donation of the king.

But whilst we dispute concerning diffisrent schemes of refor- mation, all directed to the same end, a previous doubt occur*

366 THE BRITISH CONSTITUTION.

Jn the debate, Avhetlicr the end itself be good, or safe ; — wheth- er the influence so loudly coiiiplnined of can be destroyed, or even diminished, without danger to the state. Whilst the zeal of some rnen beholds this influence with a jealousy, which noth- ing but its abolition can appease, many wise and virtuous poli- ticians deem a considerable portion of it to be as necessary a part of the British constitution, as any other ingredient in the composition ; to be tliat, indeed, which gives cohesion and so- lidity to the whole. Were the measures of government, say they, opposed from nothing but principle, government, ought to have nothing but the rectitude of its measures to support them : but since opposition springs from other motives, government must possess an influence to counteract that opposition ; to pro- duce not a bias of the passions, but a neutrality ; — it must have some weight to cast into the scale, to set the balance even. It is the nature of power, always to press upon the boundaries which confine it. Licentiousness, faction, envy, impatience of control or inferiority ; the secret pleasure of mortifying the great, or the hope of dispossessing them ; a constant willingness to question and thwart whatever is dictated, or even proposed by another ; a disposition common to all bodies of men, to ex- tend the claims and authority of their orders ; above all, that love of power, and of showing «t, which resides more or less in every human breast, and which, in popular os-cniblies, is in- flamed, like every other passion, by communication and en* couragement : These motives, added to private designs and re- sentments, cherished also by popular acclamation, and operating TJpon the great share of power already possessed by the House of Commons, might induce a majority, or at least a large party of men in that assembly, to unite in endeavouring to draw to themselves the whole government of the state ; or at least, so to obstruct the conduct of public aft'airs, by a wanton and perverse opposition, as to render it impossible for the wisest statesman to tarry forward the busine.":S of the nation in parliament with sucj jC£X£ or satisfaction.

THE BRITISH CONSTITUTION. 357

Some passages of our national history afford grounds lor these apprehensions. — Before the accession of James the First, or, at least, during the reigns of his three immediate predeces- sors, the government of England was a government by force ; that is, the king carried his measures in parliament by intimi- dation. A sense of personal danger kept the members of the House of Common in subjection. A conjunction of fortunate causes delivered at last the parliament and nation from slavery. That overbearing system, which had declined in the hands of James, expired early in the reign of his son. After the restor- ation, there succeeded in its place, and since the Revolution has been methodically pursued, the more successful expedient o[ injluence. Now, we remember what passed between the loss of terror, and the establishment of influence. The transactions of that interval, whatever we may think of their occasion or ef- •fectj no friend of regal government would wish to see revived. But the affairs of this kingdom aftbrd a more recent attestation to the same doctrine. In the British colonies of North Ameri- ca, the late assemblies possessed much of the power and con- stitution of our House of Commons. The king and government of Great Britian held no patronage in the country, which could create attachment and influence sufficient to counteract that restless, arrogating spirit, which, in popular assemblies, when left to itself, will never brook an authority that checks and in- terferes with its own". To this cause, excited perhaps by some unseasonable provocations, we may attribute, as to their true and proper original, (we will not say the misfortunes,) but, the changes that have taken place in the British empire. The admonition, which such examples suggest, will have its weight with those, who are content with the general frame of the En- glish constitution ; and who consider stability amongst the first perfections of any government.

We protest, however, against any construction, by which what is here said shall be attempted to be applied to the justi- fication of bribery, or of any clandestine reward or solicitation

353 THC BRITI3II CONSTITUTro^^

whatever. The very secrecy of such negocialions confesses or begets a consciousness of guilt ; which, when the mind is once taught to endure without uneasiness, the character is prepared for every compliance : and there is the greater danger in these corrupt practices, as the extent of tiieir operation is unlimited and unknown. Our apology relates solely to that influence, which results from the acceptance or expectation of public prefer- ments. Nor does the influence, which we defend, require any sacrifice of personal probity. In political, above all other sub- jects, the arguments, or rather the conjectures, on each side of a question, arc oflon so equally poised, that the wi.5est judg- ments may be held in suspense : these I call subjects of indif- ference. But again, when the subject is not iadiff'erent in itself, it will appear such to a great part of those to whom it is pro- posed, for want of information, or rellcction, or experience, or of capacity to collect and weigh the reasons by which either side is supported. These are subjects oi apparent indi/ferencc. This indifference occurs still more frequently in personal con- tests, in which we do not often discover any reason of public utility for the preference of one competitor to another. These eases compose the province of influence : that is, the decision in these cases will inevitably ])e determined by influence of some sort or other. The only douI)t is, what influence shall be ad- mitted. If you remove the influence of the crown, it is only to inake way for influence iVom a different quarter. If motives of expectation and gratitude be withdrawn, other motives will suc- ceed in their place, acting probably in an opposite direction, but equally irrelative and external to the proper merits of the question. There exist, as we have seen, passions in the human heart, which will always make a strong party against the exec- utive power of a mixed government. According as the dispo- sition of parliament is friendly or adverse to tlie recommenda- tion of the crown in matters which are really or apparently in- different, as indifference hath been now explained, the business of the empire will be transacted with ease and convenience, or

THE BRITISH CONSTITUTION. 35^

pinbarrassed with endless contention and difficulty. Nor is it a conclusion founded in justice, or warranted by experience, that, because men are induced by views of interest to yield their con- sent to measures, concerning which their judgment decides noth- ing, they may be brought by the same influence to act in direct opposition to knowledge and duty. V/hoever reviews the ope- rations of government in this country since the Revolution, will find few even of the most questionable measures of administra- tion, about which the best iiittriicted judgment might not have doubted at the time ; but of which he may affirm with certainty^ that they were indiff'creiit to the greatest part of those who con- curred in thera. From the success, or the facility, with which they Vvho dealt out the patronage of the crown carried measures like these, ought we to conclude, that a similar application of honours and emoluments would procure the consent of parlia- ment to counsels evidently detrimental to the common welfare ? Is there not, on the contrary, more reason to fear, that the prerog- ative, if deprived of influence, would not be long able to support itself ? For when we reflect upon the power of the House of Commons to extort a compliance with its resolutions from the oth- er parts of the legislature ; or to put to death the constitution by a refusal of the annual grants of money to the support of the ne- cessary functions of government ; — when we reflect also what mo- tives there are, which, in the vicissitudes of political interesifs and passions, may one day arm and point this power against the executive magistrate ; — when we attend to these considerations, we shall be led perhaps to acknowledge, that there is not more of paradox than of probability, in that important, but much de- cried apophthegm, " that an independent parliament is incou:- "palible with the existence of the monarchy."

360 OF JUSTICE.

CHAPTER VIII.

OF THE ADMINISTRATION OF JUSTICE.

THE first maxim of a free stale is, tliat the laws be made b\ one set of men, and administered by another ; in other words, that the legislative and judicial characters be kept separate. Wlien'thcse offices are united in the same person or assembly, particular laws are made for particular cases, springing often- times from partial motives, and directed to private ends : whilst they are kept separate, general laws are made by one body of men, without foreseeing whom they may affect ; and, when made, must be applied by the other, let them affect whom they will.

For the sake of illustration, let it be supposed, in this country, either that, parliaments being laid aside, the courts of Westmin- ster-Hall made their own laws ; or that the two houses of parlia- ment, with the king at their head, tried and decided causes at their bar ; it is evident in the first place, that the decisions, of such a judicature would be so many laws ; and, in the second place, that, when the parties and the interests to be affected by the law were known, the inclinations of the law-makers would inevitably attach on one side or the other ; and that, where there were neither any fixed rules to regulate their determinations, nor any superior power to control their proceedrngs, these inclina- tions would interfere with the integrity of public justice. The consequence of which must be, that the subjects of such a constitution would live either without any constant laws, that is, without any known pre-established rules of adjudication whatev- er ; or under laws made for particular cases and particular per- sons, and partaking of the contradictions and iniquity of the mo- tives to which they owed their origin.

Which dangers, by the division of the legislative and judicial functions, are effectually provided against. Parliament knows

DF JUSTtCE. . Mdi

hrH the individuals upon whom its acts will operate ; it lias no Cases or parties before it ; no private designs to serve ; conse- quently, its resolutions will be suggested by the consideration of universal eifects and tendencies, which always produces innpar- tial and commonly advantageous regulations. When laws are made, courts of justice, whatever be the disposition of the judg- es, must abide by them 5 for, the legislative being necessarily the supreme power of the state, the judicial, and every other power, is accountable to that : and it cannot be doubted, but that the persons who possess the sovereign authority of govern- ment, will be tenacious of the laws which they themselves pre- scribe, and sufficiently jealous of the a3Sum.ption of dispensing the legislative power by any others.

This fundamental rule of civil jurisprudence is violated in the case of acts of attainder or confiscation, in bills of pains and pen- alties, and in all ex post facto laws whatever, in which parlia- ment exercises the double office of legislature and judge. And whoever either understands the value of the rule itself, or col- lects the history of those instances, in which it has been invaded, will be induced, 1 believe, to acknowledge, that it had been wis- er and safer never to have departed from it. He will confess, at least, that nolhfng but the most manifest and immediate peril of the commonwealth will justifj' a repetition of these dangerous ex- amples. If the laws in being do not punish an offender, let hiiu go unpunished ; let the legislature, admonished of the defect of the laws, provide against the commission of futuie crimes of the same sort. The escape of one delinquent can never produce so much harm to the community as may arise from the infraction of a rule, upon which the purity of public justice, and the ex* istencis of civil liberty, essentially depend.

The next security for the impartial administration of justice^ especially in decisions to which government is a party, is tlie independency of the judges. As protection against every illegal attack upon the riglits of the subject by the servants of the crown is to bo sought for from these tribuaals, the judges of the lanrt 46

362 OF JUSTICi:.

become not unfroqiiently the arbitrators between the king and the people ; on wiiich account they ouglit to be independent of either ; or, what is the same thing, equally dependent upon both ; that is, if they be appointed by the one, they should be remov- able only by the other. This was the policy which dictated that memorable improvement in our constitution, by which the judges, who before the Revolution held their offices during the pleasure of the king, can now only be deprived of them by an address from both houses of parliament ; as the most regular, solemn, and authentic way, by which the dissatisfaction of the people can be expressed. To make this independency of the judges complete, the public salaries of their office ought not only to be certain, both in amount and continuance, but so liberal as to secure their integrity from the temptation of secret bribes w hich liberality will answer also the further purpose of preserv- ing their jurisdiction from contempt, and their characters from suspicion ; as well as of rendering the station worthy of the am- bition of men of eminence in their profession.

A third precaution to be observed in the formation of comi-ts of justice is, that the number of" the judges be small. For, be- side that the violence and tumult inseparable from large assem- blies, are inconsistent with t/ie patience, method, and attention requisite in judicial investigations ; beside that all passions and prejudices act with augmented force upon a collected multitude : beside these objection?, judges, when they are numerous, divide the shame of an unjust determination : they shelter themselves under one another's example ; each man thinks his own charac- ter hid in the crowd : for which reason, the judges ought always to be so few, as that the conduct of each may be conspicuous to public ebservation ; that each may be responsible in his separate and particular reputation for the decisions in which he concurs. The truth of the above remark has been exemplified in this country, in the etVects of that wise regulation which transferred the trial of parliamentary elections from the House of Commons at large to a select committee of that bouse, composed of thir-

OF JUSTICE. 36'3

^t.e en' members. This alteration, simply by reducing the num- ber of the judges, and, in consequence of that reduction, expos- ing the judicial conduct of each to public animadversion, has giv- en to a judicature, which had been long swayed by interest and solicitation, the solemnity and virtue of the most upright tribu- nals.— I should prefer an even to an odd number of judges, and tour to almost any other number : for in this number, beside that it sufficiently consults the idea of separate responsibilit}^, nothing can be decided but by a majority of three to one : and when we consider that every decision establishes a perpetual precedent, we shall allow that it ought to proceed from an authority not less than this. II' the court be equally divided, nothing is done ; things remain as they were ; with some inconveniency, indeed, to the parties, but without the danger to the public of a hasty precedent.

A fourth requisite in the constitution of a court of justice, and equivalent to many checks upon the discretion of judges, is, that its proceedings be carried on in public, apertis foribus ; not on- ly before a promiscuous concourse of by-standers, but in the au- dience of the whole profession of the law. The opinion of the bar concerning what passes, will be impartial ; and will com- monly guide that of the public. The most corrupt judge will fear to indulge his dishonest wishes in the presence of such aii assembly : he must encounter, what ievf can support, the censure of his equals and companions, together with the indignation and reproaches of his country.

Something is also gained to the public by appointyig two or three courts of concurrent jurisdiction, that it may remain in the option of the suitor to which he will resort. By this means, a tribunal which may happen to be occupied by ignorant or sus- pected judges, will be deserted for others that possess more of the confidence of the nation.

But, lastly. If several courts, co-ordinate to and independent -iof each other, subsist together in the country, it seems necessa- ify that the appeals from all of them should meet and terminate

SUi Of JUSTIOK.

ill tlie same judicature ; in order that one supreme tribunal, by whose final sentence all others are bound and concluded, may superintend and preside over the rest. This constitution is ne- cessary for two purposes ;^-to preserve an uniformity in the de- cisions of inferior courts, and to maintain to each the proper limits of its jurisdiction. Without a common superior, different courts might establish contradictory rules of adjudication, and the contradiction be final and without remedy ; the same ques- tion might receive opposite determinations, apcording as it was brought before one court or another, and the determination i» each be ultimate and irreversible. A common appellant jurisr diction prevents or puts an end to this confusion. For when the judgments upon appeals are consistent (which may be expected, whilst it is the same court which is at last resorted to,) the dif- ferent courts, from which the appeals are brought, will be re- duced to a like consistency with one another. Moreover, if questions arise between courts, independent of each other, con- cerning the extent and boundaries of their respective jurisdiction, as each will be desirous of enlarging its own,, an authority which both acknowledge can alone adjust the controversy. Such a power, therefore, roust reside somewhere, lest the rights and re- pose of the country be distracted by the endless opposition and mutual encroachments of its courts of justice.

There are two kinds of judicature ; the one where the olTice of the judge is permanent in the same person, and consequently where the judge is appointed and known long before the trial ; the other, where the judge is determined by lot at the time of the trial, and for that turn only. The one may be called a j?a- ed, the other a cas!ia/ judicature. From the former may be ex- pected those qualifications which are preferred and sought for in the choice of judges, and that knowledge and readiness which result from experience in the office. But then, as the judge is Known beforehand, he is accessible to the parties ; there exists a possibility of secret management and undue practices : or, Ia pontests belwcep the crown and the subject, the judge ap-

OF JUSTICE. 365

pointed by the crown may be suspected of partiality to his patron, or of entertaining inclinations favourable to the authority /rora which he derives his own. The advantage attending the second kind of judicature, is indifferency ; the defect, the want ^f that legal science which produces uniformity and justice in legal descisions. The construction of English courts of law, in twhich causes are tried by a jury, vviUi the assistance of a judge, combines the two species together with peculiar success. This admirable contrivance unites the wisdom of a fixed with the in- tegrity of a casual judicature ; and avoids, in a great measure, the inconveniences of both. The judge impartii to the jury the benefit of his erudition and experience ; the jury, by their dis- interestedness, check any corrupt partialities which previous ap- plication may have produced in the judge. If the determination ivas left to the judge, the party might suffer under the superior interest of his adversary : if it was left to an uninstructed jury, Lis rights would be in still greater danger, from the ignorance of those who were to decide upon them. The present wise ad- mixture of chance and choice in the constitution of the court in \vhich his cause is tried, guards him equally against the fear oi injury from either of these causes.

In proportion to the acknpwledgcd excellency of this mode of trial, every deviation from it ought to be watched with vigilance^ and admitted by the legislature with caution and reluctance. Summary convictions before justices of the peace, especially for offences against the game laws ; courts of conscience ; extending the jurisdiction of courts of equity ; urging too far the distinction between questions of law and matters of fact ; — are all so many infringements upon this great charter of public safety.

Nevertheless, the trial by jury is sometimes found inadequate to ihe administration of equal justice. This imperfection takes place chiefly in disputes in which some popular passion or prejudice in- tervenes ; as where a particular order of men advance claims upon the rest of the cou:imunity. which is the case of the clergy contending for tithes ; or where an order of men are obnoxious

366 OF JUSTICE.

by their profession, as are officers of the revenue, bailifis, bailiff's followers, and other low ministers of the law ; or where one of the parties has an interest in common with the general interest of the jurors, and that of the other is opposed to it, as in contests, between landlords and- tenants ; between lords of manors and the holders of estates under them ; or, lastly, where the minds of men are inflamed by political dissensions or religious hatred. These prejudices act most powerfully upon the common people ; of which order juries are made up. The force and danger of them are also increased by the very circumstance of taking ju- ries out of the county in which the subject of dispute arises. In the neighbourhood of the parties, the cause is often prejudged : and these secret decisions of the mind proceed commonly more upon sentiments of favour or hatred, — upon some opinion con- cerning the sect, family, profession, character, connexions, or circumstances of the parties, — than upon any knowledge or dis- cussion of the proper merits of the question. More exact jus- tice would, in many instances, be rendered to the suitors, if the determination were left entirely to the judges ; provided we could depend upon the same purity of conduct, when the pqwer of these magistrates was enlarged, which they have long mani- fested in the exercise of a mixed and restrained authority. But this is an experiment too big with public danger to be hazarded. The effects, however, of some local prejudices, miglit be safely obviated by a Jaw empowering the court, in which the action is 'brought, to send the cause to trial in a distant county ; the ex- penses attending the change of place always falling upon the party who applied for it.

There is a second division of courts of justice, whifch presents a new alternative of difficulties. Either one, two, or a few sove- reign courts may be erected in the metropolis, for the whole kingdom to resort to ; or courts of local jurisdiction may be fixed in the various provinces and districts of the empire. Great, though opposite, inconveniences attend each arrangement. If Hie court be remote and solemn,, it becomes, by these very qual-

OF JUSTICE. 367

ities, expensive and dilatory : the expense is unavoidably in- creased when witnesses, parties, and agents, must be brought to attend from distant parts of die country : and, where the whole judicial business of a large nation is collected into a iew superi- or tribunals, it will be found impossible, even if the prolixity of forfns which retards the progress of causes were removed, to give a prom^it hearing to every complaint, or an immediate answer to any. On the other hand, if, to remedy these evils, and to render the administration of justice cheap and speedy, domestic and summary tribunals be erected in each neighbourhood, the advantage of such courts will be accompained with all the dan- gers of ignorance and partiality, and with the certain mischief of confusion and contrariety in their decisions. The law of Eng- land, by its circuit, or itinerary courts, contains a provision for the distribution of private justice, in a great measure relieved from both these objections. As the presiding magistrate comes into the country a stranger to its prejudices, rivalships, and con- nexions, he brings with him none of those attachments and re- gards, which are so apt to pervert the course of justice, when the parties and the judges inhabit the same neighbourhood. A- gain, as this magistrate is usually one of the judges of the su- preme tribunals of the kingdom, and has passed his life in the study and administration of the laws, he possesses, it may be presumed, those professional qualifications, which befit the dig- nity and importance of his station. Lastly, as both he, and the advocates who accompany him in his circuit, are employed in the business of (hose superior courts (to which also their pro- ceedings are amenable,) they will naturally conduct themselves by the rules of adjudication which they have applied or learned there ; and by this means maintain, what constitutes a principal perfection of civil government, one law of the land in every part and district of the empire.

Next to the constitution of courts of justice, we are naturally led to consider the maxims which ought to guide their proceedings ; and, upon this subject, the chief inquiry w ill be, how far, and fov

36{i OF jysTicii.

^vhat reasons, it i? expedieivl to adhere to former delerniinations j or whether it be necessary forjudges to attend to any other con- sideration than the apparent and particular equity of the case before them. Now, although to assert, that precedents estab- lished by one set of judges ought to be incontrovertible by their successors in the same jurisdiction, or by tliose who exercise a higher, would be to attribute the sentence of those judges all the authority we ascribe to the most solemn acts of the legisla- ture ; yet the general security of private rights, and of civil life, requires that such precedents, especially if they have been con- firmed by repeated adjudications, should not be overthrown, without a detection of manifest error, or without some imputation of dishonesty upon the court by whose judgment the question was first decided. And this deference to prior decisions is found- ed upon two reasons ; first, that the discretion of judges may be bound down by positive rules ; and, secondly, that the subject, upon every occasion in which his legal interest is concerned, maj' know beforehand how to act, and what to expect. To set judges free from any obligation to conform themselves to the decisions of their predecessors, would be to lay open a latitude of judging, with which no description of men can safely be entrusted ; it would be to allow space for the exercise of those concealed par- tialities, which, since they cannot by any human policy be ex- cluded, ought to be confined by boundaries and fand-marks. It is in vain to allege, that the superintendency of parliament is al- ways at hand to control and punish abuses of judicial discretion. By what rules can parliament proceed ? How shall they pro- nounce a decision to be wrong, where there exists no acknowledg- ed measure or standard of what is right ; which, in a multitude of instances, would be the case, if prior determinations were no longer to be appealed to ?

Diminishing the danger of partiality, is One thing gained by adhering to precedents ; but not the principal thing. The sub- ject of every system of laws must expect that decision in his own case, which he knows that others havo received in cases similav

OF JUSTICE. 339

lo his. If he expect not this, he can expect nothing. There exists no other rule or principle of reasoning, by which he can ibretel, or even conjecture, the event of a judicial contest. To remove therefore the grounds of this expectation, by rejecting the force and authority of precedents, is to entail upon the sub- ject the worst property of slavery, — -to have no assurance of his rights or knowledge of his duty. But the quiet of the country, as well as the confidence and satisfaction of each man's mind, requires uniformity in judicial proceedings. Nothing quells a spirit of litigation like despair of success ; therefore nothing so completely puts an end to litigation as a rigid adherence to known rules of adjudication. Whilst the event is uncertain, which it ever must be, whilst it is uDcertain whether former determina- tions upon the same subject will be followed or not, law-suit?? will be endless and innumerable : men will continually engage ill them, either from the hope qf prevailing in their claims, which the smallest chance is sufficient to encourage ; or with the design of intimidating their adversary by the terrors of a dubious liti- gation. When justice is rendered to the parties, only half the business of a court of justice is done : the more important part of its office remains ;^-to put an end, for the future, to every fear, and quarrel, and expense upon the same point ; and so to regulate its proceedings, that not only a doubt once decided may be stirred no more, but tiiat the whole train of law-suits, which issue from one uncertainty, may die with the parent question. Now, this advantage can only be attained by considering each decision as a direction to succeeding judges. And it shoald be observed, that every departure from former determinations, eS' pecially if they have been often repeated or long submitted to, shakes the stability of ail legal title. It is not fixing a point anew ; it is leaving every thing unfixed. For by the same stretch of power by which the present race of judges take upon them to contradict the judgment of their predecessors, those wIjo try the question next, may set aside theirs. From an adherence however to precedents, by which so much 13 47

570 OF JUSTICE.

gained to the public, two consequences aiise wliicli are ot'tcn la- mented ; the hardship of particular determinations, and the intri- cacy of the law as a science. To the first of these complaints, we liiust apply this reflection ; — " That uniformity is of more im- " portancc than equity, in proportion as a general uncertainty " would be a greater evil than particular injustice." The sec- ond is attended with no greater inconveniency than that of erect- ing the j^ractice of the law into a separate profession : which this reason, we allow, makes necessary ; for if we attribute so much authority to precedents, it is expedient that they be known, in every cause, both to the advocates and to the judge : this knowledge cannot be general, since it is the fruit oftentimes of laborious research, or demands a memory stored with long-col- lected erudition.

To a mind revolving upon the subject of human jurisprudence, there frequei^tly occurs this question ; — Why, since the maxiots of natural justice are few and evident, do there arise so manv doubts and controversies in the application ? Or, in other words, how comes it to pass, that although the principles of the law of nature bo simple and ?or the most part sufficiently obvious, there should exist nevertheless, in every system of municipal laws, and m the actual administration of relative justice, numerous uncer- tainties and acknowledged difficulties ? Whence, it may be ask- ed, so much room fur litigation, and so many subsisting disputes, ii the lu-les of human duly be neither obscure nor dubious ? If a system of morality, containing both the precepts of revelation, and the deductions of reason, may be cwmprised within the com- pass of one moderate volume ; and the moralist be able, as hie pretends, to describe the rights and obligatiops of mankind, in all the dilferent relations they may hold to one another ;. what need of those codes of j)ositive and particular institutions, of those tomes of statutes and reports, Avhich require the employment of a long life oven to peruse ? ;Aiid this question is immediately connected with the argument which has been discussed in the preceding paragraph ; for, unless there be found some greater

OF JUSTICE. 371

uncertainty in tlic- law ot nature, or what may be called natural equity, when it comes to be applied to real cases and to actual adjudication, than what appears in the rules and principles of the science, as delivered in the writings of those who treat of the T^ubject, it were better that the determination of every cause should be left to the conscience of the judge, unfettered by pre- cedents and authorities ; since the very purpose for which these are introduced, is to give a certainty to judicial proceedings, which such proceedings would want without them.

Now, to account for the existence of so many, sources of liti- gation, notwithstanding the clearness and perfection of natural justice, it should be observed, in the first place, that treatises of morality always suppose facts to be ascertained ; and not only so, but the intention likewise of the parties to be known and laid bare. For example, when we pronounce that promises ought to be fulfilled in that sense in which the promiser apprehended, at the time of making the promise, the other party received and understood it ; the apprehension of one side, and the expecta- iion of the other, must be discovered, before this rule can be re- duced to practice, or applied to the determination of any actual dispute. Wherefore the discussion of facts which the moralist supposes to be settled, the discovery of intention:^ which he pre- sumes to be known, still icmain to exercise the inquiry of courts of justice. And as these facts and intentions are often to be in- ferred, or rather conjectured, from obscure indications, from sus- picious testimony, or from a comparison of opposite and con- lending probabilities, they afforded a never-failing supply of doubt and litigation. For which reason, as hath been observed in a former part of this Work, the^science of morality is to be considered rather as a direction to the parties, who are conscious of their own thoughts, and motives, and designs, and to which consciousness the teacher of morality constantly appeals, than as a guide to the judge, or to any third person, whose arbitration must proceed upon rules of evidence, and maxims of euedibilit}',, with which the moralist has no concern.

372 OF JUSTICE.

Secondly, There exists a multitude of cases, in which the law of nature, that is, the law of public expediency, prescribes noth- ing, except that some certain rule be adhered to, and that the rule actually established be preserved ; it either being indiffer- ent what rule obtains, or, out of many rules, no one being so much more advantageous than the rest, as to recompense the in- conveniency of an alteration. In all such cases, the law of na- ture sends us the law of the land. She directs either that some fixed rule be introduced by an act of the legislature, or that the rule which accident, or cuslom, or common consent, hath already established, be steadily maintained. Thus, in the descent of lands, or the inheritance of personals from intestate proprietors, whether the kindred of the grand -mother, or of the great-grand- mother, shall be preferred in the succession ; whether the de- gr.ees of consanguinity shall be computed through the common ancestor, or from him ; whether the widow shall lake a third or a moiety of her husband's fortune ; whether sons shall be pre- ferred to daughters, or the elder to the younger ; whether the dsstinction of age ^hall be regarded amongst sisters, as well as between brothers ; in these, and in a great variety of cjuestions which the same subject supplies, the law of nature determines nothing. The only answer she returns to our inquiries is, that some certain and general rule be laid down by public authority ; be obeyed when laid down ; and that the quiet of the country be not disturbed, nor the expectation of heirs frustrated, by ca- pricious innovations. This silence or neutrality of the law of nature, which we have exemplified in tlie case of intestacy, holds concerning a great part of the questions that icJalc to the right or acquisition of property. Recourse; then, must necessarily be had to statutes, or precedents, or usage, to fix what the law of nature has left loose. The interpretation cf these statutes^ the search after precedents, the investigation of custom, compose therefore an unavoidable, and at the same time a large and in- tricate portion of forensic business. Positive constitutions or ju- dicial authorities are. in like manner, wanted to give piecision

OF JUSTICE. 573

ho many things which are in their nature indeterminats. Thq age of legal discretion ; at which time of life a person shall be deemed competent to the performance of any act which may (Jiind his property ; whether at twenty, or twenty-one, or earlier or later, or at some point of time between these years, can only be ascertained by a positive Eule of the society to which the par- ty belongs. The line has not been drawn by nature, — the hu- man understanding advancing to maturity by insensible degrees, and its progress varying in different individuals. Yet it is ne- cessary, for the sake of mutual security, that a precise age be fixed, and that what is fixed be known to all. It is on these oc- casions that the intervention of law supplies the inconstancy of nature. Again, there are other things which are perfectly arbi- trary^ and capable of no certainty but what is given to them by positive regulation. It is necessary that a limited time should be assigned to defendants, to plead to the complaints alleged against them ; and also that the default of pleading within a cer- tain time should be taken for a confession of the charge ; but to how many days or months that term should be extended, though necessary to be known with certainty, cannot be known at all by any information which the law of nature affords. And the same remark seems applicable to almost all those rules of proceeding which constitute what is called the practice of the court ; as they cannot be traced out by reasoning, they must be settled by au- thority.

Thirdly, In contracts, whether express or implied, which in- volve a great number of conditions ; as in those which are en- tered into between masters and servants, principals and agents ; many also of merchandise, or for works of art ; in some likewise which relate to the negociation of money or bills, or to the ac- ceptance of credit or security ; the original design and expecta- tion of the parties was, that both sides should be guided by the course and custom of the country in transactions of the same sort. Consequently, when these contracts come to be disputed, natural justice can only refer to that custom. But as such customs are

374 OF JUSTICE.

not always sulTicienlly uniioroi or notorious, but often to be col- lected from the production and comparison of instances and ac- counts repugnant to one another ; and each custom being only that, after all, which, amongst a variety of usajie.-, seems to pre- dominate, we have here also ample room for doubt and contest. Fourthly, As the law of nature, founded in the very construc- tion of human society, which is formed to endure through a se- ries a perishing generations, requires that the just engagements a man enters into should continue in force beyond his own life ; it follows, that the private rights of persons frequently depend up- on what has been transacted, in times remote from the present, by their ancestors or predecessors, by those under whom they claim, or to whose obligations they have succeeded. Thus the questions which usually arise between lords of manors and their tenants, between the king and those who claim royal franchises, or between them and the persons affected by these franchises, depend upon the terms of the original grant. In like manner, every dispute concerning tithes, in which an exemption or com- position is pleaded, depends upon the agreement which took place between the predecessor of the claimant and the ancient owner of the land. The appeal to these grant.'; and agreements is dictated by natural equity, as well as by the municipal law : but concerning the existence, or the conditions, of such old cov- enants, doubts will perpetually occur, to which the law of nature affords no solution. The loss or decay of records, the perisha- bloness of living memory, the corruption and carelessness of tradition, all conspire to multiply uncertainties upon this head ; what cannot be produced or proved, must be left to loose and fallible presumption. Under the same head may be included another topic of altercation, — the tracing out of boundaries, which time, or neglect, or unity of possession, or mixture of oc- cupation, have founded or obliterated. To which should be add- ed, a difficulty which often presents itself in disputes concerning rights of xs;aij, both public and private, and of those easements which one man claims in another r'nan's property ; namely, that

OF JUSTICE. S75

of distinguishing, after a lapse of years, the use of an indulgence from the exercise of a right.

Fifthly, The quantity or extent of an injury, even when the cause and author of it are known, is often dubious and undefined. If the injury consist in the loss of some specific right, the value of the right measures the amount of the injury : but what a man may have suffered in hi;3 person, from an assault ; in his reputa- tion, by slander ; or in the comfort of his life, by the seduction of a wife or daughter ; or wiiat sum of money shall be deemed a re- paration for the damage, cannot be ascertained by any rules H'hich the law of nature supplies. The law of nature commands, that reparation be made ; and adds to her command, that, when the aggressor and the sufferer disagree, the damage be assessed by authorized and indifferent arbitrators. Here then recourse must be had to courts of law, not only with the permission, but in some measures by the direction, of natural justice.

Sixthly, When controversies arise in the interpretation of written laws, they for the most part arise upon some contingen- cy wliich the composer of the law did not foresee or think of. In the adjudication of such cases, this dilemma presents itself; if the laws be permitted to operate only upon the cases which were actually contemplated by the law-makers, they will al- ways be found defective ; if they be extended to every case to which the reasoning, and spirit, and expediency of the provision seem to belong, without any further evidence of the intention of the legislature, we shall allow to the judges a liberty of apply- ing the law, which will fall very little short of the power of ma- king it. If a literal construction be adhered to, the law will of- ten fail of its end ; if a loose and vague exposition be admitted, the law might as well have never been enacted ; for this licence will bring back into the subject all the uncertainty which it was the design of the legislature to take av5:ay. Courts of justice are, and always must be, e-nbarrassed by these opposite difficulties j and, as it can never be known beforehand, in what degree either consideration inay prevail in the mind of the judge, there re- mains an unavoidable cause of doubt, and a place for contention.,

376 OF JUSTICE.

Seventhly, The deliberations of courts of justice upon every neiisj question, are encumbered with additional difficulties, in con- sequence of the authority which the judgment of the court pos- sesses, as a precedent to future judicatures ; which authority appertains not only to the conclusions the court delivers, but to the principles and arguments upon which they are built. The view of this effect makes it necessary for a judge to look be- yond the case before him ; and beside the attention he owes to the truth and justice of the cause between the parties, to reflect whether the principles, and maxims, and reasoning, which he adopts and authorizes, can be applied with safety to all cases which admit of a comparison with the present. The decision of the cause, were the effects of the decision to stop there, migl'.t be easy ; but the consequence of establishing the principle, which such a decision assumes, may be difficult, though of ths utmost importance, to be foreseen and regulated.

Finally, After all the certainty and rest that can be given to points of law, either by the interposition of the legislature or the authority of precedents, one principal source of disputation, and into which indeed the greater part of legal controversies may be resolvedj will remain still-, namely, " the competition of opposite " analogies." When a point of law has been once adjudged, neither that question, nor any which completely and in all it.*: circumstances, corresponds with that, can be brought a second time into dispute : but questions arise, which resemble this only indirectly and in part, in certain views and circumstances, and which may seem to bear an equal or a greater affinity to other ad- judged cases ; questions which can be brought within any affixed rule only by analogy, and which hold a relation by analogy to different rules. It is by the urging of these different analogies that the contention of the bar is carried on : and it is in the com- parison, adjustment, and reconciliation of them with one another ; in the discerning of such distinctions, and in the framing of such a determination, as may either save the various rules alleged in the cause, or, if that be impossible, may give up the weaker

OF JUSTICI:. 367

analogy to the stronger, that the sagacity and wisdom 'of the court are seen and exercised. Amongst a thousand instances of of this, we may cite one of general notoriety, in the contest that has lately been agitated concerning literary property. Thn personal industry which an author expends upon the composition of his work, bears so near a resemblance to that by which every other kind of property is earned, or deserved, or acquired ; or rather there exists such a correspondency between what is crea- ted by the study of a man's mind, and the production of his la- bour in any other way of applying it, that he seems entitled (o the same exclusive, assignable, and perpetual right in iioth ; and that right to the same protection of law. This was the anal- ogy contended for on one side. On the other hand, a book, as to the author's right in it, appears similar to an inverition of art, as a macliine, an engine, a medicine : and since the law permits these to be copied, or imitated, except where an exclusive use or sale is reserved to the inventor by patent, the same libeity should be allowed in the publication and sale of books. This was the analogy maintained by the advocates of an open trade. And the competition of these opposite analogies constituted the difficulty of the case, as far as the same was argued, or adjudged upon principles of common law.- — One example may serve to il lustrate our meaning : but vrhoever takes up a volume of Reports, •will find most of tire arguments it contains, capable of the same analysis ; although the analogies, it must be coi'.fessed, are some- times so entangled as not to be easily unravelled, or even per- ceived.

Doubtful and obscure points of la\y are not, however, nearly so numerous as they are a]>prehended to be. Out of the multi- tude of causes which, in the course of each year, are biought to trial in the metropolis, or upon the circuits, there are few in which any poiht is reserved for the judgment of superior courts. Yet these few contain all the doubts with which the law is charge- able ; for, as to the rest, the uncertainty, as hath been shown above, is not in the lav*', but in the means of human information. 48

06G OF JUSTICE-.

TiiEnt are U\o peculiarities in the judicial constitution of llu.f eountry, wbich do nut carry witli tliem that evidence oi' their pro- priety which recoinmends almost every other part of the system. The fii-st of these is the rule which requires that juries be iinau- imous in their verdicts. To expect that twelve men, taken by lot out of a promiscuous multitude, should agree in their opinion upon points confessedly dubious, and upon which oftentimes the wisest judgments might belield in suspense : or to suppose that any real unavimitij, or change of opinion, in the dissenting ju- rors, could be procured by confining them until they all consented to the same verdict, bespeaks more of the conceit of a barbarous age, than of the policy which could dictate such an institution ^s that of juries. Nevertheless, the effects of this rule are not :!0 detrimental as the rule itself is unreasonable : In criminal prosecutions, it operates considerably in favour of tlie prisoner ; for if a juror find it necessary to surrender to the obstinacy of others, he will much more readily resign his opinion on the side of mercy than of condemnation : In civil suits, it adds weight to the direction of the judge ; for, when a conference with one an- other does not seem likely to produce in the jury the agreement that is necessary, they will naturally close their disputes by a common submissian^ to the opinion delivered from the bench. However, there seems to be less of the concurrence of separate judgments in the same conclusion, consequently, less assurance that the concUisron is founded in reasons of apparent truth and justice, than if the decision were left to a plurality, or to some certain majority of voices.

The second circumstance in our constitution, which, howev- er it may succeed in practice, does not seem to have bften sug- gested by an intelligible fitness in the nature of the thing, is the choice that is made of the House of Lords as a court of appeal Oom every civil court of judicature in the kingdom ; and the last also and highest appeal to which the subject can resort. Thare appears to l^e nothiug in the constitution of that assembly ; in the ediication, habits, character, or professions of the members

OF JUSTICE. S6S

^vho compose it ; in the mode ol their appointment, or the right hy >vhich they succeed to th^ir places in it, that should qualify them for this arduous office ; except, perhaps, that the elevation ol their rank and fortune affords a security against the offer and in- fluence of small bribes. Officers of the army and navy, cour- tiers, ecclesiastics ; young men who iiave just attained the age of twenty-one, and who have passed their youth in the dissipa- tion and pursuits which commonly accompany the possession or inheritance of great fortunes : country gentlemen, occupied in the management of their estates, or in the care of tlieir domestic concerns and family interests ; the greater part of the assembly born to their station, that is, placed in it by chance ; most of the rest advanced to the peerage for Services, and from motives, utterly unconnected with legal erudition : — these men compose the tribunal to which the constitution entrusts the interpretation of her laws, and the ultimate decision of ^every dispute between her subjects. These are the men assigned to review judgments of law, pronounced by sages of the professsion, who have spent their lives in the study and practice of the jurisprudence of their country. Such is the order which our ancestorft have establish- ed. The effect only proves the truth of this maxim, "That " when a single institution is extremely dissonant from other " parts of the system to which it belongs, it will always find "■ some way of reconciling itself to the analogy v/hich govern? " and pervades the rest." By constantly placing in the House of Lords some of the most eminent and experienced lawyer^ in the kingdom ; by calling to their aid the advice of the judges, when any abstract question of law awaits their determi- nation ; by the almost implicit and undisputed deference, which the uninformed part of the house find it necessary to pay to tho learning of their colleagues, the appeal to the House of Lords becomes in truth an appeal to the collected wisdom of our su- preme courts of justice ; receiving, indeed, solemnity, but little, perhap? of direction or assistance, from the presence of the 3?- ^emblv in which it is heard and determined.

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These however, even if real, are minute imperfections. A politician, who should sit down to delineate a plan lor the dis- pensation of public justice, guarded against all access to influ- ence and corruption, and bringing together the separate advan- tages of knowledge and impartiality, would find, when he had done, that he had been transcribing the judicial constitution of England. And it may teach the most discontented amongst us to acquiesce in the government of his country, to reflect, that the pure, and wise, and equal administration of laws, forms the first end and blessing of social union ; and that this blessing is enjoyed by him in a perfection, which he will seek i« vain in any other nation of (he world.

CHAPTER IX.

OF CPJMES AND PUNISHMENTS.

THE proper end of human punishment i«, not the satisfactioft of justice, but \iie prevention of crimes. By the satisfaction of justice, I moan the retribution of so much pain for so much guilt ; nhich is the dispensation we expect at the hand of God, and which we are accustomed to consider as the order of things that perfect justice dictates and requires, in what sense, or wheth- er with truth in any sense justice may be said to demand the punishment of ofiendcrs, I do not now inquire : but I assert, that this demand is not the motive or occasion of human punishment. What would it be to the magistrate, that offences went altogeth- er unpunished, if the impunity of the offenders were followed by no danger or prejudice to the commonwealth ? The fear lest the escape of tlie criminal should encourage him, or others by his example, to repeat the same crime, or to commit differ» ent crimes, is the sole consideration which authorizes the in- fliction of punishment by human laws. Now that', whatever it

AND PUNISHMENTS. 371

be, which' is the cause and end of Ihe punishment, ought un- doubtedly to regulate the measure of its severity. But this cause appears to be founded, not in the guilt of the ofifender, but in the necessity of preventing the repetition of the offence : And from hence results the reason, that crimes are not by any government pun-ished in proportion to their guilt, nor in all cases ought to be so, but in proportion to the difficulty and the neces- sity of preventing them. Thus, the stealing of goods privately out of a shop, may not, in its moral quality, be more criminal than the stealing of them out of a house : yet being equally ne- cessary, and more difficult, to be prevented, the law, in certain circumstances, denounces against it a severer punishment. The crime must be prevented by some means or other ; and conse- quently, whatever means appear necessary to this end, whether they be proportionable to the guilt of the criminal or not, are adopted rightly, because they are adopted upon the principle: which alone justifies the infliction of punishment at all. From the same consideration it a^lso follows, that punishment ought not to be employed, much less rendered severe, when the crime can be prevented by any other means. Punishment is an evil to which the magistrate resorts only from its being necessary to the prevention of a greater. This necessity does not exist, when the end may be attained, that is, when the public may be defended from the eflects of the crime, by any other expedient. The sanguinary laws which have been made against counterfeit- ing or diminishing the gold coin of the kingdom might be just, until the method of detecting the fraud, by weighing the money, was introduced into general usage. Since that precaution was practised, these laws have slept ; and an execution under them would be deemed at this day a measure of unjustifiable severity. The same principle accounts for a circumstance, which has been often censured as an absurdity in the penal laws of this, and of most modern nations, namely, that breaches of trust are either not punished at all, or punished with less rigour than other frauds. Wherefore is it, some have asked, that a violation of confidence.

372 OF CRIMES

which increases the guilt, sliould mitigate tlie penally ? — Tiiis lenitj, or rather forbearance, of the laws, is founded in the most reasonable distinction. A due circumspection in the choice of the persons whom they trust ; caution in limiting the extent of that twist ; or the requiring of suflScient security for the faithful discharge of it, will Conmionly guard men from injuries of this description : and Ihe law will not interpose its sanctions to pro- tect negligence and credulity, or to supply the place of domes- tic care and prudence. To be convinced that the law proceeds entirely upon this consideration we have only to observe, that where the confidence is unavoidable, where no practicable vigil- anc^: could watch the ofifender, as in the case of theft committed by a servant in the shop or dwelling-house of his master, or up- on property to which he must necessarily have access, the sen- tence of the law is not less severe, and its execution commonly more certain and rigorous, than if no trust at all had intervened. It is in pursuance of the same principle, which pervades indeed the whole system of penal jurisprudence, that the facility with which any species of crimes is perpetrated has been generally deemed a reason for aggravating the punishment. Thus, sheep- stealing, horse-stealing, the stealing of cloth from tenters or bleaching-grounds, by our laws, subject the offenders to sentence of death : not that these crimes are in their nature more heinous than many simple felonies which are punished by imprisonment or transportation, but because the property being more exposed, requires the terror of capitnl punishment to protect it. This sp- verity would be absurd and unjust, if the guilt of the offender were the immediate cause and measure of the punishment ; but is a consistent and regular consequence of the supposition, that the right of punishment results from the necessity of preventing the crime : for, if this be the end proposed, the severity of the punishment must be increased in proportion to the expediency and the difficulty of attaining this end ; that is, in a proportion compounded of the mischief of the crime, and of the ease with which it is executed. The difficulty of discovery is a cir-

AND PUxMSHMENTS. 37;^

eumstance to be included in the same consideration. It consti- tute§ indeed, with respect to the crime, the facility we speak of. By hmv much therefore the detection of an offender is more rare and uncertain, by so much the more severe must be the punishment when he is detected. Thus the writing of incendia- ry letters, though in itself a pernicious and al«rming injury, calls for a more condign and exemplary punishment, by the very obscurity with which the crime is committed.

From the justice of God we are taught to look for a gradation of punishment exactly proportioned to the guilt of the offender : when therefore, in assigning the degress of human punishment, we introduce considerations distinct from that guilt, and a pro- portion so varied by external circumstances, that equal crimes frequently undergo unequal punishments, or the less crime the greater ; it iii natural to demand the reason why a different meas- ure of punishment should be expected from Godj and observed by man ; why that rule, w^iich befits the absolute and perfect iustice of _ the Deity, should not be the rule which ought to be pursued and imitated by human laws. The solution of this diffi- culty must be sought for in those peculiar attributes of the divine nature, v.bich distinguish the dispensations of supreme wisdom from the proceedings of human judicature. A Being whose knowledge penetrates every concealment, from the operation of whose will no art or flight can escape, and in whose hands pun- ishment is sure ; such a Being may conduct the moral govern- ment of his creatioit, in the best and wisest manner, by pronoun- cing a law that every crime sha'l finally receive a punishment proportioned to the guilt which it contain'=^, abstracted from any foreign consideration whatever; and may testify his veracity. to the spectators of his judgments, by carrying this law into strict execution. But when the care of the public safety is entrusted to men, whose authority over their fellow-creatures is limited by defects of power and knowledge ; from whose utmost vigilance and sagacity the greatest offenders often lie hid ; whose wisest provisions and speediest pursuit may be eluded by artifice or

374 OF CHIMES

concealment ; a diffeieiit necessity, a new rule of proceeding, results from the very imperfection of their faculties. In their hands, the uncertainty of punishment must be compensated by the severity. The ease with which crimes are committed or concealed, must be counteracted by additional penalties and in- creased terrors. The very end for which human government is established, requires that its regulations be adapted to the sup- pression of crimes. This end, whatever it may do in the plans of infinite wisdom, does not, in the designation of temporal penal- ties, always coincide with the proportionate punishment of guilt.

There are two methods of administering penal justice.

The first method assigns capital punishments to few offences, and inflicts it invariably.

The second method assigns capital punishments to many kinds of oflFences, but inflicts it only upon a tew examples of cfach kind.

The latter of which two methods has been long adopted in this country, where, of those who receive sentence of death, scarcely one in ten is executed. And the preference of this to the former method seems to be founded in the consideration, that the selec- tion of proper objects for capital punishment principally depends upon circumstances, which however easy to perceive in each particular case after the crime is committed, it is impossible to enumerate or define beforehand ; or to ascertain however with that exactness, which is requisite in legal descripitons. Hence, although it be necessary to fix by precise rules of law the boun- dary on one side, that is, the limit to which the punishment may be extended ; and also that nothing less than the authority of the whole legislature be suiFerred to determine that boundary, and assign these rules ; yet the mitigation of punishment, the exer- cise of lenity, may without danger be entrusted to the executive magistrate, whose discretion will operate upon those numerous unforeseen, mutable, and indefinite circumstances, both of the crime and the criminal, which constitute or qualify the maligni- ty of each offence. Without the power of relaxation lodged in a living authority, eithex some ofi"ender3 would escape capital

AND PUNISHMENTS. 375

|.unishmeut, whom the public safety required to suffer ; or some would undergo this punishment, where it was neither deserved nor necessary. For if judgment of death Avere reserved for one or two species of crimes only (which would probably be the case if that judgment was intended to be executed without ex- ception,) crimes might occur of the most dangerous example, and accompanied with circumstances of heinous aggrnvation, which did not fall within atuj description of offences that the laws had made capital, and which consequently could not re- ceive the punishment their own malignity and the public safety required. What is worse, it would be known beforehand, that such crimes might be committed without danger to the offend- er's life. On the other hand, if, to reach these possible cases, the whole class of offences to which they belong be subjected to pains of death, and no power of remitting this severity remain any where, the execution of the laws will become more san- guinary than the public compassion would endure, or than is necessary to the general security.

The law of England is constructed upon a ditferent and a bet- ter policy. By the number of statutes creating capital offences, it sweeps into the net every crime which, under any possible cir- cumstances, may merit the punishment of death ; but, when the execution of this sentence comes to be deliberated upon, a small proportion of each class are singled out, the general char- acter, or the peculiar aggravations, of whose crimes render them fit examples of public justice. By this expedient, few actually suffer death, whilst the dread and danger of it hang over the crimes of many. The tenderness of the law cannot bd taken advantage of. The life of the subject is spared as far as the necessity of restraint and intimidation permits ; yet no one will adventure upon the commission of any enormous crime, from a knowledge that (he laws have not provided for ilg punishment. The wisdom and humanity of this design furnish a just excuse for the muUiplicity of capital offences, which the laws of Eng-

49

376 OF CRIMES

land arc accused of creating beyond those of other countries. The charge of cruelty is answered by observing, that these laws' were never meant to be carried into indiscriminate execu- tion ; that the legislature, when it establishes its last and highest sanctions, trusts to the benignity of the crown to relax their se- verity, as often as circumstances appear to palliate the offence, or even as often as those circumstances of aggravation are want- ing, which rendered this rigorous interposition necessary. Up- on this plan, it is enough to vindicate the lenity of the laws, that some instances are to be found in each clas-s of capital crimes, which require the restraint of capital punishment, and that this restraint could not be applied without subjecting the whole class to the same condemnation.

There is however one species of crimes, the making of which capital can hardly, 1 think, be defended even upon the com- prehensive principle just now stated ; — I mean that of privately stealing from the person. As every degree of force is exclud- ed by the description of the crime, it will be difficult to assign an- example, where either the amount or circumstances of the theft place it upon a level with those dangerous attempts to which the punishment of death should be confined. It will be still more difficult to show, that, without gross and culpable neg- ligence on the part of the sufferer, such examples can ever be- come so frequent, as to make it necessary to constitute a class of capital offences, of very wide and large extent.

The prerogative of pardon is properly reserved to the chief magistrate. The power of suspending the laws is a privilege of too high a nature to be committed to many hands, or to those of any inferior officer in the state. The king also can best collect the advice by which his resolutions should be governed ; and is at the same time removed at the greatest distance from the in- fluence of private motives. But let this power be deposited where it will, the exercise of it ought to be regarded, not as the gift of a favour to be yielded to solicitation, granted to friend- ship, or, least of all, to be made subservient to the conciliciting

AND PUNISHMENTS. 377

crgratifying of political attachments,but as a judicial act; as a de- liberation to be conducted with the same character of impartiality, ivith the same exact and diligent attention to the proper merits and reasons and circumstances of the case, as that which the judge upon the bench was expected to maintain and show in the trial of the prisoner's guilt. The questions, whether the prisoner be guilty ? and whether, being guilty, he ought to be executed? are equally questions of public justice. The adjudication of the latter question is as much a function of magistracy as the trial of the former. The public welfare is interested in both. The conviction of an offender should depend upon nothing but the proof of his guilt ; nor the execution of the sentence upon any thing beside the quality and circumstances of his crime. It is necessary to the good order of society, and to the reputa- tion and authority of government, that this be known and be- lieved to be the case in each part o^ the proceeding. Which reflections show that the admission of extrinsic or oblique consid- erations, in dispensing with the power of pardon, is a crime, in the authors and advisers of such unmerited partiality, of the same nature with that of corruption in a judge.

Aggravations which ought to guide the magistrate in the se- lection of objects of condign punishment, are principally these three, — repetition, cruelty, combination. The two first, it is manifest, add to every reason upon which the justice or the necessity of rigorous measures can be founded ; and, with re- spect to the last circumstance, it may be observed, that whgHi theives and robbers are once collected into gangs, their violence becomes more formidable, the confederates more desperate, and the difficulty of defending the public against their depredations much greater, than in the case of solitary adventurers. ^Vhich several considerations compose a distinction, that is properly adverted to, in deciding upon the fate of convicted malefactors.

In crimes, however, which are perpetrated by a multitude, or by a gang, it is proper to separate, in the punishment, the ring- leader from his followers, the principal from his accomplices,

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and even the person who struck the blow, broke the lock, or first entered the house, from those who joined him in the felo- ny ; not so much on account of any distinction in the guilt of the offenders, as for the sake of casting an obstacle in the way of such confederacies, by rendering it difficult for the confederates to settle who shall begin the attack, or to find a man amongst their number willing to expose himself to greater danger than his associates. This is another instance in which the punish- ment, which expediency directs, does not pursue tlie exact pro- portion of the crime.

Injuries effected by terror and violence, are those which it is the first and chief concern of legal government to repress ; be- cause their extent is unlimited ; because no private precaution can protect the subject against them ; because they endanger life and safety, as w^ell as property ; and lastly, because they render the condition of society wretched, by a sense of personal insecurity. These reasons do not apply to frauds which cir- cumspection may prevent ; which must wait for opportuni- ty ; which can proceed only to certain limits ; and, by tl>€ ap- prehension of which, although the business of life be incommod- ed, life itself is not made miserable. The appearance of this distinction has led some humane writers to express a wish, that capital punishments might be confined to crimes of violence.

In estimating the comparative malignancy of crimes of vio- lence, regard is to be had, not only to the proper and intended mischief of the crime, but to the fright occasioned by the at- tack, to the general alarm excited by it in others, and to the consequences which may attend future attempts of the same kind. Thus, in affixing the punishment of burglary, or of breaking into dwelling-houses by night, we are to consider, not only the peril to vvhirh the most valuable property is exposed by this crime, and which may be called the direct mischief of it, but the danger also of murder in case of resistance, or for the sake of preventing discovery, and the universal dread with which the silent and defenceless hours of rest and sleep must be

AND PUNISHMENTS. 379

disturbed, were attempts of this sort to become frequent : and which dread alone, even without the mischief which is the ob- ject of it, is not only a public evil, but almost of all evils the most insupportable. These circumstances place a difference between the breaking into a dwelling-house by day, and by night ; which difference obtains in the punishment of the offence by the law of Moses, and is probably to be foursd in the judicial codes of most countries from the earliest ages to the present.

Of frauds, or of injuries which are effected without force, the most noxious kinds are, — forgeries, counterfeiting or diminish- ing of the coin, and the stealing of letters in the course of their conveyance ; inasmuch as these practices tend to deprive the public of accommodations, which not only improve the conven- iences of social life, but are essential to the prosjierity, ande\"€ii the existence of commerce. Of these crimes it may be said, that although they seem to affect property alone, the mischief of their operation does not terminate there. For, let it be sup- posed, that the remissness or lenity of the laws should, in any country, suffer offences of this sort to grow into such a frequen- cy, as to render the use of money, the circulation of bills, or the public conveyance of letters, no longer safe or practicable ; what would follow, but that every species of trade and of activ- ity must decline under these discouragements ; the sources of subsistence fail, by which the inhabitants of the country are sup- ported ; the country itself, where the intercourse of civil life was so endangered and defective, be deserted ; and that, beside the distress and poverty which the loss of employment would produce to the industrious and valuable part of the existing community, a rapid depopulation must take place, each genera- tion becoming less numerous than the last; till solitude and barrenness overspread the land ; until a desolation similar to what obtains in many countries of Asia, which were once the most civilized and frequented part of the world, succeed in the place of crowded cities, of cultivated fields, of happy and well- peopled regions? When we carry forward therefore our views

380 OK CRIMEb

4o the more dibtant, but not less certain consequences ot these crimes, we perceive that, though no living creature be destroy- ed by thein, yet human life is diminished ; that an offence, the particular consquence of which deprives only an individual of a small portion of his property, and which even in its general ten- dency seems only to obstruct the enjoyment of certain public conveniencies, may, nevertheless, by its ultimateeffects, conclude in the laying waste of human existence. This observation will enable those who regard the divine rule of " life for life, and blood for blood," as the only authorized and justifiable meas- ure of capital punishment, to perceive, vvidi respect to the effects and quality of the actions, a greater resemblance than they sup- pose to exist between certain atrocious frauds, and those crimes which attack personal safety.

In the case of forgeries, there appears a substantial difference between the forging of bills yf exchange, or of securities which are circulated, and of which the circulation and currency are found to serve and facilitate valuable purposes of commerce ; and the /brging of bonds, leases, mortgages, or of instruments which are not commonly transferred from one hand to another ; because, in the former case credit is necessarily given to the signature, and without that credit the negociation of such prop- erty could not be carried on, nor the public utility, sought from it, be attained : in the other case, all possibility of deceit might he precluded, by a direct communication between the parties, or by due care in the choice of their agents, with little interrup- tion to business, and without destroying, or much encumbering, the uses Cor which these intsruments are calculated. This dis- tinction I apprehend to be not only real, but precise enough to afford a line of division between forgeries, which, as the law now stands, are almost universally capital, and punished with updistinguishing severity.

Perjury is another crime of the same class and magnitude. And, when we consider what reliance is necessarily placed upon oaths ; that all judicial decisions proceed upon testimony ; that

AND PUiNISHMENTS. SCI

consequently there is not a right that a man possesses, of which false witnesses may not deprive him ; that reputation, property, and life itself, lie open to the attempts of perjury ; that it may often be committed without a possibility of contradiction or dis- covery ; that the success and prevalency of this vice tend to in- troduce the most grievous and fatal injustice into the administration of human affairs, or such a distrust of testimony as must create universal embarrassment and confusion : — when v.'e reflect upon these mischiefs, we shall be brought, probably, to agree with the opinion of those, who contend that perjury, in its punishment, especially that which is attempted in solemn evidence, and in the face of a court of justice, should be placed upon a level with the most flagitious frauds.

The obtaining of money by secret threat;), whether we regard the difliculty with which the crime is traced out, the odious im- putations to which it may lead, or the profligate conspiracies, that are sometimes formed to carry it into execution, deserves to be reckoned amongst the worst species of robbery.

The frequency of capital executions in this country, owes its necessity to three causes ; — much liberty, great cities, and the , want of a punishment short of death, possessing a sufficient degree of terror. And if the taking away of the life of malefactors be more rare in other countries than in ours, the reason will be found in some difference in these articles. The liberties of a free peo- ple, and still more the jealousy with which these liberties are watched, and by which they are preserved, permit not those ()recautions and restraints, that inspection, scrutiny, and control, which are exercised with success in arbitrary governments. For example, neither the spirit of the laws, nor of the people, will suffer the detention or confinement of suspected persons, without proofs of their guilt, which is often impossible to obtain ; nor will they allow masters of families to be obliged to record and render up a description of the strangers or inmates whom they enter- tain ; nor that an account be demanded, at the pleasure of the magistrate, of each man's time, employment, and means of sub-

382 OF CRIMES

sistence ; nor securities lo be required when these accounts ap- pear unsatisfactory or dubious ; nor men to be apprehended up- on the mere suggestion of idleness or vagrancy ; nor to be con- fined to certain districts ; nor the inhabitants of each district to be made responsible for one another's behaviour : nor passports to be exacted from all persons entering or leaving the kingdom : Ijeast of all will they tolerate the appearance of an armed force, or of.military law ; or suiTer the streets and public roads to be guarded and patrolled by soldiers ; or, lastly, intrust the police with such discretionary powers, as may make sure of the guilty, however they involve the innocent. These expedients, although arbitrary and rigorous, are many of them effectual ; and in pro- portion as they render the commission or concealment of crimes more difficult, they substract fiom the necessity of severe pun- ishment.— Great cities multiply crimes, by presenting easier op- portunities and more incentives to libertinism, which in low life is commonly the introductoiy stage to other enormities ; by collecting thieves and robbers into the same neighbourhood, which enables them to form communications and confederacies, that increase their art and courage, as well as strength and wick- edness ; but principally by the refuge they afford to villany, in the means of concealment, and of subsisting in secrecy, which crowded towns supply to men of every description. These temptations and facilities can only be counteracted by adding to the number of capital punishments. — But a third cjuse, which increases the frequency of capital executions in England, is a defect in the laws, in not being provided with any other punish- ment than that of death, sufficiently terrible to keep offenders in awe. Transportation, which is the sentence second in the order of severity, a[)pears to me to answer the purpose of example very imperfectly ; not only because exile is in reality a slight pun- ishment to those who have neither property, nor friends, nor rep- utation, nor regular means of subsistence at home, and because their situation becomes little worse by their crime than it was before they committed it ; but because the punishment, what-

AND PUNISHMENTS. 383

ever it be, is unobserved and unknown. A transported con- vict may suffer under his sentence, but his sufferings are re- moved from the view of his countrymen ; his misery is unseen ; his condition strikes no terror into the minds of those, for whose warning and admonition it was intended. This chasm in the scale of punishment produces also two further imperfections in the administration of penal justice ; the first is, that the same punishment is extended to crimes of very different character and malignancy ; the second, that punishments separated by a great interval, are assigned to crimes hardly distinguishable in their guilt and mischief.

The end of punishment is two-fold — ^amendmeni and example. In the first of these, the reformation of criminals, little has ever been effected, and little I fear, is practicable. From every species of punishment that has hitherto been devised, from imprisonment and exile, from pain and infamy, malefactors return more hardened in their crimes, and more instructed. If there be any thing that shakes the soul of a confirmed villain, it is the expectation of approaching death. The horrors of this situation may cause such a wrench in the mental organs, as to give them a holding turn ; and I think it probable, that many of those who are executed, would, if they were delivered at the point of death, retain such a remembrance of their sensations, as might preserve them, unless urged by extreme want, from re- lapsing into their former crimes. But this is an experiment that, from its nature, cannot be repeated often.

Of the reforming punishraenls which haVe not yet been tried, none promises so much success as thzt o{ solitary imprisonment, or the confinement of criminals in separate apartments. This improvement would augment the terror of the punishment ; would seclude the criminal from the society of his fellow-prison- ers, in which society the worse are sure to corrupt the better , would wean him from the knowledge of his companions, and t'roni the love of that turbulent, precarious life, in which his vi- ces had engaged him ; would raise up in him reflections on the folly of his choice, and dispose his mind to such bitter and con-

384 OF CRIMEA

tiiiued penitence, as miglit produce a lasting aller.ition iii the principles of his comluct.

As aversion to labour is the cause from vvhiclj half of the vices of low life deduce their origin and continuance, punishments ought to be contrived with a view to the conquering of this dispo- sition. Two opposite expedients have been recommended for this purpose ; the one, solitary confinement, with hard labour ; the other, solitary confinement with notliing to do. Both expe- dients seek the same end ; — to reconcile the idle to a life of in- dustry. The former hopes to effect this by making labour ha- bitual ; the latter, by making idleness irksome and insupporta- ble : and the preference of one method to the other depends upon the question, whether a man is more likely to betake himself, of his own accord, to work, who has been accustomed to employ- ment, or who has been distressed by the want of it. When gaols are once provided for the separate confinement of prisoners, whicii both proposals require, the choice between them may ■-oon be determined by experience. If labour be exacted, I would leave the whole, or a portion, of the profit to the prisoner's use, and I would debar him from any other provision or fupply ; that this subsistence, however coarse or penuri<>us, may be pro- portioned to his diligence, and that he may taste the advantage of industry, together with the toil. I would go further ; I would jneasure the confinement, not by duration of time, but by quan- tity of work, in order both to excite industry, and to render it more voluntary. But the principal difficulty remains still ; nnmely, how to dispose of criminals after their enlargement. By a rule of life, which is perhaps too invariably and indiscrim- inately adhered to, no one will receive a man or woman out of gaol, into any service or employment whatever. This is the common misfortune of public punishments, that they preclude the offender from all honest u)ean3 of future support.* It seems

"^ Until this inconvenience be remedied, small offences bad perhaps better go unpunished : I do not mean that the law shoulJ exempt them from punishment, but that private persons should be tender in prosecuting them.

AND PUNISHMENTS. 385

incinnbent upon the State to secure a maintenance to those who are willing to work for it ; and yet it is absolutely necessary to divide criminals as far asunder from one another as possible. Whether male prisoners might not, after the term of their con- finement was expired, be distributed in the country, detained within certain limits, and employed upon the public roads ; and females be remitted to the overseers of country parishes, to be there furnished with dwellings, and with the materials and im- plements of occupation ; whether by these, or by what other methods, it may be possible to effect the two purposes of employ-^ ment and dispersion, well merits the attention of all who are anx- ious to perfect the internal regulation of their country.

Torture is applied either to obtain confessions of guilt, or to exasperate or prolong the pains of death. No bodily punish- ment, however excruciating or long continued, receives the name of torture, unless it be designed to kill the criminal by a more lingering death ; or to extort from him the discovery of some ■secret, which is supposed to lie concealed in his breast. The question by torture appears to be equivocal in its effects ; for, since extremity of pain, and not any consciousness of remorse in the mind, produces those effects, an innocent man may sink un- der the torment as soon as the guilty. The latter has as much to fear from yielding as the lormer. The instant and almost ir- resistible desire of relief may draw from one sufferer false accu- sations of himself or others, as it may sometimes extract the truth out of another. This ambiguity renders the use of torture, as a means of procuring information in criminal proceedings, lia- ble to the risk of grievous and irreparable injustice. For which reason, though recommended by ancient and general example, it has been properly exploded from the mild and cautious system of penal jurisprudence established in this country.

Barbarous spectacles of human agony are justly found fault with, as tending to harden aed deprave the public feelings, and to destroy that sympathy with which the sufferings of our fellow- •creatures ought always to be seen ; or, if no effect of this kind

386 OF CRIMES

folIo\V from them, they counteract in some rheasure their own design, by sinking men's abhorrence of the criminal. But if a mode of execution could be devised which would augment the liorror of the punishment, without offending or impairing the pub- lic sensibility by cruel or unseemly exhibitions of death, it might add something to the efficacy of the example ; and by being re^ served for a few atrocious crimes, might also enlarge the scale of punishment ; an addition to which seems wanting : for as the matter remains at present, you hang a malefactor for a simple robbery, and can do no more to the villain who has poisoned his father. Somewhat of the sort we have been describing, was the proposal, not long since suggested, of casting murderers in- to a den of wild beasts, where they would perish in a manner dreadful to the imagination, yet concealed from the view.

Infamous punishments are mismanaged in this country, with respect both to the crimes and the criminals. In the first place, they ought to be confined to oflences which are held in undis- puted and universal detestation. To condemn to the pillory the author or editor of a libel against the State, who has render- ed himself the favourite of a party, if not of the people, by the very act for which he stands there, is to gratify the offender, and to expose the laws to mockery and insult. In the second place, the delinquents who receive this sentence, are for the most part such as have long ceased either to value reputation, or to fear shame : of whose happiness, and of whose enjoyments, charac- ter makes no part. Thus the low ministers of Jibertinism, the keepers of bawdy or disorderly houses, are threatened in vain with a punishment that affects a sense which they have not; tliat applies solely to the imagination, to the virtue and the pride of human nature. The pillory, or any other infamous distinc- tion, might be employed riglitly, and with effect, in the punish- ment of some offences of higher life ; as of frauds and peculation in office ; of collusions and connivances, by which the public treasury is defrauded ; of breaches of trust ; of peijury and sub^ ornation of perjury ; of tlip clandestine and forbidden sale of

AND PUNISHMENTS. ,^87

places ; of flagrant abuses of authority, or neglect of duty ; and lastly, of corruption in the exercise of confidential or judicial of- fices. In all which, the more elevated was the station of the criminal, the more signal and conspicuous would be the triumph of justice.

The certainty of punishment is of more consequence than the severity. Criminals do not so much flatter themselves with the lenity of the sentence, as with the hope of escaping. Tney are not so apt to compare what they gain by the crime with what they may suffer from the punishment, as to encourage themselves with the chance of concealment or flight. For which reason, a vigilant magistracy, an accurate police, a proper distribution of force and intelligence, together with due rewards for the discov- ■ery and apprehension of malefactoi-s, and an undeviating impar- tiality in carrying the laws into execution, contribute more to the restraint and suppression of crimes than any violent exacer- bations of punishment. And for the same reason, of all contri- vances directed to this end, those perhaps are most effectual which facilitate the conviction of criminals. The offence of counterfeiting the coin could not be checked by all the terrors and the utmost severity of law, whilst Uie act of coining was necessary to be established by specific proof. The statute which made the possession of the implements of coining capital, that is, which constituted that posession complete evidence of the offender's guilt, was the first thing that gave force and effi- cacy to the denunciations of law upon this subject. The statute of James the First, relative to the murder of bastard children, which ordains that the concealment of the birth should be deem- ed incontestible proof of the charge, though a harsh law, was, in like manner with the former, well calculated to put a stop to the crime.

It is upon the principle of this observation, that I apprehend much harm to have been done to the community, by the over- strained scrupulousness, or weak timidity of juries, which de- mands often such proof of a prisoner's guilt, as the nature and

;jaL; RELIGIOUS ESTABLISHMENT!:,

secrecy of liis' crime scarce possibly admit of; and which holds it the part of a safe conscience not to condemn any man, whilst there exists the minutest possibility of his innocence. Any sto- ry they may happen to have heard or read, whether real or feign- ed, in which courts of justice have been misled by presumptions of guilt, is enough, in their minds, to found an acquittal upon, where positive proof is wanting. I do not mean that juries should indulge conjectures, should magnify suspicions into proofs, or even that they should weigh probabilities in gold scales; but when the preponderation of evidence is so manifest as to per- suade every private understanding of the prisoner's guilt ; when it furnishes that degree of credibility, upon which men decide and act in all other doubts, and which experience hath shown that they may decide and act upon with sufficient safety : to re- ject such proof, from an insinuation of uncertainty that belongs to all human affairs, and from a general dread lest the charge of innocent blood should lie at their doors, is a conduct which, how- ever natural to a mind studious to its own quiet, is authorized by no considerations of rectitude or utility. It counteracts the care and damps the activity of government : it holds out public en- couragement to villany, by confessing the impossibility of bring- ing villains to justice : and that species of encouragement which, as hath been just now observed, the minds of such men are most apt to entertain and dwell upon.

• There are two popular maxims, which seem to have a consid- erable influence in producing the injudicious acquittals of which we complain. One is, " That circumstantial evidence falls short "of positive proof." This assertion, in Hie unqualified sense in which it is applied, is not true. A concurrence of well authen- ticated circumstances composes a stranger ground of assurance than positive testimony, unconfirmed by circumstances, usually affords. Circumstances cannot lie. The conclusion also which results from them, though deduced by only probable inference, is commonly more to be relied upon than the veracity of an un- supported solitary witness. The danger of being deceived is

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less, the actual instances of deception are fewer, in the one case than the other. What is called positive proof in criminal mat- ters, as where a man swears to the person of the prisoner, and that he actually saw him commit the crime with which he is charged, may be founded in the mistake or perjury of a single witness. Such mistakes, and such perjuries, are not without many examples. Whereas, to impose upon a court of justice a chain of circumstantial evidence in su^iport of a fabricated accu- sation, requires such a number of false witnesses as seldom meet together ; a union also of skill and wickedness which is still more rare : and, after all, this species of proof lies much more open to discussion, and is more likely, if false, tobe contradicted, or to betray itself by some unforeseen inconsistency, than that di- rect proof, which being confined within the knowledge of a sin- gle person, which appealing to, or standing connected with, no external or collateral circumstances, is incapable, by its very simplicity, of being confronted with opposite probabilities.

The other maxim which deserves a similar examination i« this : — " That it is better that ten guilty persons escape, than " that one innocent man should suffer." If by saying it is bet- ter, be meant that it is more for the public advantage, the propo- sition, I think, cannot be maintained. The security of civil life, which is essential to the value and the enjoyment of every bless- ing it contains, and the interruption of which, is followed by uni- versal misery and confusion, is protected chiefly by the dread of punishment. The misfortune of an individual (for such may the sufferings, or even the death, of an innocent person be call- ed, when they are occasioned by no evil intention) cannot be placed in competition with this object. I do not contend that the life or safety of the meanest subject ought, in any case to be knowingly sacrificed : no principle of judicature, no end of pun- ishment, can ever require that. But when certain rules of adju- dication must be pursued, when certain degrees of credibility must be accepted, in order to reach the crimes with which the public are infested ; courts of justice should not be deterred from the application of these rules by erer^/ suspicion of danger.

390 RELIGIOUS ESTABLISHMENTS.

or by the mere possibility of confounding the innocent witli the guilty. They ought rather to reflect, that he who falls by a mistaken sentence may be considered as falling for his country j whilst he suffers under the operation of those rules, by the gen- eral effect and tendency of which the welfare of the community is maintained and upheld.

CHAPTER X.

OF RELIGIOUS ESTABLISHMENTS, AND OF TOLERATION.

" A RELIGIOUS establishment is no part of Christianity ; it " is only the means of inculcating it." Amongst the Jews, the rights and offices, the order, family, and succession of the priest- hood, weje marked out by the authority which declared the law itself. These, therefore, were /7flrts of the Jewish religion, as well as ihe means of transmitting it. Not so with the new in- stitution. It cannot be proved that any form of church-govern- ment was laid down in the Christian, as it had been in the Jew- ish scriptures, with a view of fixing a constitution for succeeding ages ; and which constitution, consequently, the disciples of Christianity would every where, and at all times, by the very law of their religion, be obliged to adopt. Certainly no com- mand for this purpose was delivered by Christ himself ; and if it be shown that the apostles ordained bishops and presbytery a- mongst their first converts, it must be remembered that deacons also and deaconesses were appointed by them, with functions very dissimilar to any which obtain in the church at present. The truth seems to have been, that such offices were at first erected in the Christian church, as the good order, the instruction, and the exigencies of the society at that time required, without any intention, at least without any declared design, of regulating the appointment, authority, or the distinction of Christian ministers under future circumstances. This reserve, if we may so call it,

AND TOLERATION. 391

In the Christian Legislator, is sufficiently accounted for by two considerations : — First, That no precise constitution could be framed, which would suit with the condition of Christianity in its primitive state, and with that which it was to assume when it should be advanced into a national religion : Secondly, That a particular designation of office or authority amongst the min- isters of the new religion, might have so interfered with the ar- rangements of civil policy, as to have formed, in some countries, a considerable obstacle to the progress and reception of the reli- gion itself,

The authority therefore of a church establishment is founded in its utility : and whenever, upon this principle, we deliberate, concerning the form, propriety, or comparative excellency of different establishments, the single view under which we ought to consider any one of them, is that of "a scheme of instruc- " tion ;" the single end we ought to propose by them is, " the " preservation and communication of religious knowledge." Ev- ery other idea, and every other end that have been mixed with this, as the making of the church an engine, or even an ally of the state ; converting it into the means of strengthening or of diffusing influence ; or regarding it as a support of regal, in op- position to popular forms of government, — have served only to debase the institution, and to introduce into it numerous corrup- tions and abuses.

The notion of a religious establishment comprehends three things : — a clergy, or an order of men secluded from other pro- fessions to attend upon the otTices of religion ; a legal provision for the maintainance of the clergy ; and the confining of that provision to the teachers of a particular sect of Chi'istianity. If any one of these three things be wanting ;. if there be no cler- gy, as amongst the Quakers ; or if the clergy have no other pro- vision than what they derive from the voluntary contribution of their hearers ; or, if the provision which the laws assign to th^ support of religion be extended to various sects and denomina- tions of Christians ; there exists no national religion or establish- 51

392 RELIGIOUS ESTABLISHMENTS,

ed church, according to the sense which these terms are usually made to convey. He, therefore, who would defend ecclesias- tical establishments, must show the separate utility of these three essential parts of their constitution : —

1. The question first in order upon the subject, as well as the most fundamental in its importance, is, whether the knowledge and profession of Christianity can be maintained in a country without a class of men set apart by public authority to the study and teaching of religion, and to the conducting of public wor- ship ; and for these purposes, secluded from other employments. I add this last circumstance, because in it consists, as I take it» the substance of the controversy. Now, it must be remember- ed, that Christianity is an historical religion, founded in facts which are related to have passed, upon discourses which were held, and letters which were written, in a remote age, and dis- tant country of the world, as well as under a state of life and manners, and during the prevalency of opinions, customs, and institutions, very unlike any which are found amongst mankind at present. Moreover, this religion, having been first published in the country of Judea, and being built upon the more ancient religion of the Jews, is necessarily and intimately connected with the Sacred Writings, with the history and polity of that singular people ; to which must be added, that the records of both revelations are preserved in languages which have long ceased to be spoken in any part of the world. Books which come down to us from times so remote, and under so many caus- es of unavoidable obscurity, cannot, it is evident, be understood without study and preparation. The languages must be learr>- ed. The various writings which these volumes contain, must be carefully compared with one another, and with themselves. What remains of contemporary authors, or of authors connected with the age, the country, or the subject of our Scriptures, must be perused and consulted, in order to interpret doubt- ful forms of speech, and to explain allusions which ref<»r to objects or usages that no longer exist. Above all, the modes

AND TOLERATION. 393

of expression, the habits of reasoning and argumentation, which were then in use, and to which the discourses even of inspired teachers were necessarily adapted, must be sufficiently known, and can only be known at all by a due acquaintance with an- cient literature. And, lastly, to establish the genuineness and integrity of the canonical Scriptures themselves, a series of tes- timony, recognizing the notoriety and reception of these books, must be deduced from times near to those of their first publica- tion, down the succession of ages through which they have been transmitted to us. The qualifications necessary for such re- searches demand, it is confessed, a degree of leisure, and a kind of education, inconsistent with the exercise of any other profes- sion ; but how (ew are there amongst the clergy, from whom a- ny thing of this sort can be expected ! how small a proportion of their number, who seem likely either to augment the fund of sacred literature, or even to collect what is already known ! — To this objection it may be replied, that we sow many seeds to raise one flower. In order to produce a few capable of im- proving and continuing the stock of Christian erudition, leisure and opportunity must be afforded to great numbers. Original knowledge of this kind can never be universal ; but it is of the- utmost importance, and it is enough, that there be at all times found some qualified for such inquiries, and in whose concurring and independent conclusions upon each subject, the rest of the Christian community may safely confide : Whereas, without an order of clergy educated for the purpose, and led to the pros- ecution of these studies, by the habits, the leisure, and the ob- ject of their vocation, it may well be questioned whether the learning itself would not have beenlost^by which the records of our faith are int^erpreted and defended. We contend, therefore, that an order of clergy is necessary to perpetuate the evidences of revelation, and to interpret the obscurities of those ancient writings, in which the religion is contained. But beside this, which forms, no doubt, one design of their institution, the more ■ordinary oiRces of, public teaching, and of conducting pubjir

394 RELIGIOUS ESTABLISHMENTS,

worship, call for qualifications not usually to be met wlih amidst the employments of civil life. It has been acknowledged by some, nho cannot be suspected of making unnecessary conces- sions in favour of establishments, " to be barely possible, that a " person who was never educated for the oflice, should acquit "himself with decency as a public teacher of religion." And that surely must be a very defective policy which trusts to pos- sibilities for success, when provision is to be made for regular and general instruction. Little objection to this argument can be drawn from the example of the Quakers, who, it may be said, furnish an experimental proof that the worship and profession of Christianity may be upheld without a seperate clergy. These sectaries every where subsist in conjunction with a regular es- tablishment. They have access to the writings, they profit by the labours of the clergy, in common with other Christians. They participate in that general diffusion of religious knowledge, which the constant teaching of a more regular ministry keeps up in the country ; with such aids, and under such circumstances, the defects of a plan may not be much felt, although the plan it> self be altogether unfit for general imitation.

2. If then an order of clergy be necessary, if it be necessary also to seclude them from the employments and profits of other professions, it is evident they ought to he enabled to derive a maintenance from their own. Now, this maintenance must ei- ther depend upon the voluntary contributions of their hearers, or arise from revenues assigned by authority of law. To the scheme of voluntary contribution there exists this insurmounta- ble objection, that few would ultimately contribute any thing at all. However the'zeal«of a sect, or the novelty of a change, might support such an experiment tor a while, no reliance could be placed upon it as a general and permanent provision. It is at all times a bad constitution, which presents temptations of inte- rest in opposition to the duties of religiuti ; or which makes the oftices of religion cxi)ensive to those who attend upon them ; or which allows pretences of conscience to, be an excuse for not

AND TOLERATION. 395

sharing in a public burthen. If, by declining to frequent reli- gious assemblies, men could save their money, at the same time that they indulged their indolence, and their disinclination to exercises of seriousness and reflection ; or if, by dissenting from the national religion, they could be excused from contributing to the support of the ministers of religion, it is to be feared that many would take advantage of the option which was thus im- prudently left open to them, and that this liberty might finally operate to the decay of virtue, and an irrecoverable forgetfulness of all religion in the country. Is there not too much reason to fear, that if it were referred to the discretion of each neighbour- hood, whether tfiey would maintain amongst them a teacher of religion or not, many districts would remain unprovided with any ? that, with the difficulties which encumber every measure requiring the co-operation of numbers, and where each individu- al of the number has an interest secretly pleading against the success of the measure itself, associations for the support of Christian worship and instruction would neither be numerous nor long continued ? The devout and pious might lament in vain the want or the distance of a religious assembly ; they could not form or maintain one, without the concurrence of neighbors who felt neither their zeal nor their liberality.

From the difficulty with which congregations would be estab- lished and upheld upon the voluntary plan, let us carry our thoughts to the condition of those who are to officiate in them. — Preaching, in time, would become a mode of begging. With what sincerity, or with what dignity, can a preacher dispense the truths of Christianity, whose thoughts are perpetually solic- ited to the reflection how he may increase his subscription ? His eloquence, if he possess any, resembles rather the exhibition of a player who is computing the profits of his theatre, than the simplicity of a man who, feeling himself the awful expectations of religion, is seeking to bring others to such a sense and under- standing of their duty as may save their souls. Moreover, a liitle experience of the disposition of the common people will iu

306 RELIGIOUS ESTABL13IIMEXTS,

every country inform us, tli;it it is one thing to edily tiieui iti Christian knowledge, and another to gratify their taste for vehe- ment, impassioned oratory ; that he, not only whose success, but whose subsistence, depends upon collecting and pleasing a crowd, must resort to other arts than the acquirement and com- munication of sober and profitable instruction. For a preacher to be thus at the mercy of his audience ; to be obliged to adapt his doctrines to the pleasure of a c.ipricious multitude ; to be continually affecting a style and ma'nner neither natural to him, nor agreeable to his judgment ; to live in constant bondage to tyrannical and Insolent directors ; are circumstances so mortify- ing, not only to the pride of the human heart, but to the virtu- bus love of independency, that they are rarely submitted to with- out a sacrifice ofprinciple, and a depravation of character ; — at least it may be pronounced, that a ministry so degraded would Soon fall into the lowt ! !nnd:) ; for, it would be found impossi- ble to engage men of worth and ability in so precarious and hu- miliating a profession.

If in deference then to these reasons, it be admitted, that a legal provision for the clergy, compulsory upon those \vho con- tribute to it, is expedient ; the next question will be, whether this provision should be confined to one sect of Christianitj', or extended indifferently to all ? Now it should be observed, that this question never can offer itself where the people are agreed in their religious opinions ; and that it never ought to arise, where a system may be framed of doctrines and worship wide enough to comprehend their disagreement ; and which might satisf}' all, by uniting all in the articles of their common faith, and in a mode of divine worship that omits every subject of controversy or of- fence. Where such a comprehension is practicable, the com- prehending religion ought to be made that of the state. But if this bo despaired of; if religious opinions exist, not only so va- rious, but so contradictory, as to render it impossible to recon- cile them to each other, or to any one confession of faith, rule ot discipline, or form of worship ; if, consequently, separate con-

AND TOLERATION. 397

gregations and different sects must unavoidably continue in the country : under such circumstances, whether the laws ought to establish one sect in preference to the rest, that is, whether they ought to confer the provision assigned to the maintenance of re- ligion upon the teachers of one system of doctrines alone, be- comes a question of necessary discussion and of great importance. And whatever we may determine concerning speculative rights and abstract properties, when we set about the framing of an ec- clesiastical constitution adapted to real life, and to the actual state of religion in the country, we shall find this question very nearly related to and principally indeed dependent upon an- other ; namely, " In what way, or by whom, ought the ministers " of religion to be appointed .^" If the species of patronage be retained to which we are accustomed in this country, and which allows private individuals to nominate teachers of religion for districts and congregations to which they are absolute strangers ; without some test proposed to the persons nominated, the utmost discordancy of religious opinions might arise between the sev- eral teachers and their respective congregations. A Popish pat- ron might appoint a priest to say mass to a congregation of Pro- testants ; an Episcopal clergyman be sent to officiate in a parish of Presbyterians ; or a Presbyterian divine to inveigh against the errors of Popery betbre an audience of Papists. The requi- sition then of subscription, on any other test by which the natiou- al religion is guarded, may be considered merely as a restrictioa upon the exercise of private patronage. The laws speak to the private patron thus : — " Of those whom we have previously pro- ** nounced to be fitly qualified to teach religion, we aliow you " to select one ; but we do hot allow you ta decide what I'eli- '' gion shall be established in a particular district of the country ; '' for which decision you are in nowise fitted by any qualifica- " tions which, as a private patron, you may happen to possess. *' If it be necessary that the point be determined for the inhab- " itants by anj' other will than their own, it is surely better that '' it should bo determined by the deliberate resolution of the le-,-

898 RELIGIOUS ESTABLISHMENTS,

" gislature, than hy the casual inclination of an individual, by " whom the right is purchased, or to whom it devolves as a mere " secular inheritance." Wheresoever, therefore, this constitu- tion of patronage is adopted, a national religion, or the legal pre- ference of one particular religion to all others, must almost ne- cessarily accompany it. But, secondly, let it be supposed, that the appointment of the minister of religion was in every parish left to the choice of the parishioners ; might not this choice, we ask, be safely exercised without its being limited to the teachers of any particular sect ? The effect of such a liberty must be, that a Papist, or a Presbyterian, a Methodist, a Moravian, or an Anabaptist, would successively gain possession of the pulpit, ac- cording as a majority of the party happened at each election to prevail. Now, with what violence the conflict would upon every vacancy be renewed ; what bitter animosities would be revived, or rather be constantly fed and kept alive in the neigh- bourhood ; with what unconquerable aversion the teacher and his religion would be received by the defeated party, may be fore- seen by those who reflect with how much passion every dispute is carried on, in which the name of religion can be made to mix itself ; much more where the cause itself is concerned so imme- diately as it would be in this. Or, thirdly, If the state appoint the ministers of religion, this constitution will differ little from the establishment of a national religion : for the state will, un- doubtedly, appoint those, and those alone, whose religious opin- ions, or rather, whose religious denomination, agrees with its own ; unless it be thought that any thing would be gained to re- ligious liberty by transferring (he choice of the national religion from the legislature of the country to the magistrate who admin- isters the executive government. The only plan which seems to render the legal maintenance of a clergy practicable, without the legal preference of one sect of Christians to others, is that of an experiment which is said to be attempted or designed in some of the new states of North America. The nature of the plan is thus described : — A tax is levied upon the inhabitants for

ANt> TOLERATION. 399

ihd gehetal support of religion ; the collector of the tax goes round with a register in his hand, in which are inserted, at the head of so many distinct columns, the names of the several reli- gious sects, that are professed in the country. The person who is called upon for the assessment, as soon as he has paid his quo- ta, subscribes his hame and the sum in which of the columns he pleases ; and the amount of what is collected in each column is paid over to the minister of that denomipation. In this scheme it is not left to the option of the subjectj whether he will contri- bute, or how much he shall contribute to the maintenance of a Christian ministry ; it is only referred to his choice to determine by what sect his contribution shall be received. The above ar- rangement is undoubtedly the best that has been proposed upon this principle : it bears the appearance of liberality and justice ; it may contain some solid advantages • nevertheless, it labours under inconveniences which will be found, I think, upon trial, to overbalance all its recommendations. It is scarcely compatible with that, which is the first requisite in an ecclesiastical estab- lishment,— the division of the country into parishes of a commo- dious extent. If the parishes be small, and ministers of every denomination be stationed in each (which the plan seems to sup- pose,) the expense of their maintenance will become too burthen- some a charge far the country to support. If, to reduce the ex- pense, the districts be enlarged, the place of assembling will of- tentimes be too far removed from the residence of the persona who ought to resort to it. Again, the making the pecuniary suc- cess of the different teachers of religion to depend upon the num- ber and wealth of their respective followers, would naturally generate strifes and indecent Jealousies amongst them ; as well as produce a polemical and proselyting spirit, founded in or mixed with views of private gain, which would both deprave the princi- ples of the clergy and distract the country with endless contentions. The argument, then, by which ecclesiastical establishments are defended, proceeds by these steps. The knowledge and pro- fession of Christianity cannot be upheld without a c]ers:y ; a 52

400 RELIGIOUS ESTABLISHMENTS,

clergy cannot be supported without a legal provision ; a legal provision for the clergy cannot be constituted without the pre- ference of one sect of Christians to the rest : and the conclusion will be satisfactory in the degree in which the truth of these sev- eral propositions can be made out.

If it be deemed expedient to establish a national religion, that is to say, one sect in preference to all others ; some test, by which the teachers of that sect may be distinguished from the teachers of different sects, appears to be an indispensable consequence. The existence of such an establishment supposes it : the very notion of a national religion includes that of a test.

But this necessity, which is real, hath, according to the fash- ion of human affairs, furnished to almost every church a pretence for extending, multiplying, and continuing such tests beyond what the occasion justified. For though some purposes of order and tranquillity may be answered by the establishment of creeds and confessions, yet they are all at times attended with serious fnconveniencies. They check inquiry ; they violate liberty ; they ensnare the consciences of the clergy, by holding out temp- tations to prevarication ; however they may express the persua- sion, or be accommodated to the controversies, or to the fears of the age in which they are composed, in process of time, and by reason of the changes which are wont to take place in the judgment of niankind upon religious subjects, they comd' at length to contradict the actual opinions of the church, whose doctrines they profess to contain ; and they often perpetuate the proscriptions of sects and tenets, from which any danger has long ceased to be apprehended.

It may not follow from these objections, that tests and sub- scriptions ought to be abolished ; but it follows, that they ought to be made as simple and easy as possible ; that they should be adapted from time to time to the varying sentiments and cir- cumstances of the church in which they are received : and that they should at no time advance one step further than some sub- sisting necessity requires. If, for instance, promises of conform-

A'NT) TOLERATION. '401

ity- to the rites, liturgy, and offices of the church, be sufficient to prevent contusion and disorder in the celebration of divine wor- ship, then such promises ought to be accepted in the place of stricter subscriptions. If articles of peace, as they are called, that is, engagements not to preach certain doctrines, nor to re- vive certain controversies, would exclude indecent altercations amongst the national clergy, as well as secure to the public teaching of religion as much of uniformity and quiet as is neces- sary to edification ; then confessions of faith ought to be convert- ed into articles of peace. In a word, it ought to be held a suffi- cient reason for rjelaxing the terms of subscription, or for drop- ping any or all of the articles to be subscribed, that no pres- ent necessity requires the strictness which is complained of, or that it should be extended to so many points of doctrine.

The division of the country into districts, and the stationing in each district a teacher of religion, forms the substantial part of every church establishment. The -varieties that have been introduced into the government and discipline of different church- es, are of inferior importance, when compared with this, in which they all agree. Of these economical questions, none seems more material than that which has been long agitated in the re- formed churches of Christendom, whether a parity amongst the clergy, or a distinction of orders in the ministry, be more con- ducive to the general ends of the institution. In favour of that system which the laws of this country have preferred, we may allege the following reasons : — That it secures tranquillity and subordination amongst the clergy themselves ; that it corresponds with the gradations of rank in civil life, and provides for the edification of each rank, by stationing in each an order of clergy of their own class and quality ; and, lastly, that the same fund produces more effect, both as an allurement to men of talents to center into the church, and as a stimulus to the industry of those who are already in it, when distributed into prizes of different value than when divided into equal shares.

After the state has once established a particular system of

4/32 RELIGIOUS ESTABLISHMENTS,

faith as a national religion, a question will soon occur, concern- ing the treatment and toleration of those who dissent from it. This question is properly preceded by another, concerning the right which the civil magistrate possesses to interfere in matters of religion at all ; for although this right be acknowledged whilst he is employed solely in providing means of public instruction, it will probably be disputed, (indeed, it ever has been,) when he proceeds to inflict penalties, to impose restraints or incapac- ities on the account of religious distinctions. They who ac- knowledge no other just original of civil government, than what is founded in some stipulation with its subjects, are at liberty t6 contend that the concerns of religion were excepted out of the social compact ; that, in an affair which can only be transacted between God and a man's own conscience, no commission or au- thority was ever delegated to the civil magistrate, or could in- deed be transferred from the person himself to any other. We, however, who have rejected this theory, because we cannot dis- cover any actual contract between the state and the people, aad because we cannot allow an arbitrary fiction to be made the foundation of real rights and of real obligations, find ourselves precluded from this distinction. The reasoning which deduces the authority of civil government from the will of God, and which collects that will from public expediency alone, binds us to the unrese»ved conclusion, that the jurisdiction of the magis- trate is limited by no consideration but that of general utility ; in plainer terms that whatever be the subject to be regulated, it is lawful for him to interfere whenever his interference, in its general tendency, appears to be conducive to the common inter- est. There is nothing in the nature of religion, as such, which exempts it from the authority of the legislator, when the safety or welfare of the community requires his interposition. It ha? been said, indeed, that religion, pertaining to the interests of a life to come, lies beyond the province of civil government, the office of which is confined to the afi'airs of this life. But in re- ply to this objection it may be observed, that when the laws in-

AND TOLERATION. 403

terfeve even in religion, they interfere only with temporals ; their effects terminate, their power operates only upon those rights and interests which confessedly belong to their disposal. The acts of the legislature, the edicts of the prince, the sentence of the judge cannot effect my salvation ; nor do they, without the most absurd arrogance, pretend to any such power ; but they may deprive me of liberty, of property, and even of life it- self, on account of my religion ; and however I may complain of the sentence by which I am condemned, I cannot allege, that the magistrate has transgressed the boundaries of his jurisdic- tion ; because the property, the liberty, and the life of the sub- ject, may be taken away by the authority of the laws, for any reason, which, in the judgment of the legislature, renders such a measure necessary to the common welfare. Moreover, as the precepts of religion may regulate all the offices of life, or may be so construed as to extend to all, the exemption of religion from the control of human laws might afford a plea, which would exclude civil government from every authority over the conduct of its subjects. Religious liberty, is like civil liberty, not an immunity from restraint, but the being restrained by no law, but what in a greater degree conduces to the public welfare.

Still it is right "to obey God rather than man." Nothing that we have said encroaches upon the truth of this sacred and undisputed maxim : the right of the magistrate to ordain, and the obligation of the subject to obey, in matters of religion, may be very differ- ent ; and will be so, as often as they flow from opposite apprehen- sions of the divine will. In affairs that are properly of a civil nature, in " the things that are Caesar's," this difference seldom happens. The law authorizes the act which it enjoins ; revela- tion being either silent upon the subject, or referring to the laws of the country, or requiring only that men act by some fixed rule, and that this rule be established by competent authority. But when human laws interpose their direction in matters of religion, by dictating for example, the objector the mode of divine wor- ship ; by prohibiting the profession of some articles of faith, and

•104 RKLIGIOUS ESTABLISHMENTS,

by exacting that of others, they are liable to clash with what pri- vate persor.s believe to be already settled by precepts of reve- lation ; or to contradict what God himself, they think, hath de- clared to be true. In tiiis case, on whichever side the mistake lies, or whatever pica the state ma}' allege to justify its edict, the subject can have none to excuse his compliance. The same consideralron also points out the distinction, as to the authority of the state, between temporals and spirituals. The magistrate is not to be obeyed in »ne, any more than in the other, where any repugnancy is perceived between his commands and certain credited manifestations of the divine will ; but such repugnan- cies are much less likely to arise in one case than the other.

When we grant that it is lawful for the magistrate to interfere in religion as often as his inteference appears to him to conduce, in its general tendency, to the public happiness ; it may be ar- gued from this concession, tliat since salvation is the highest in- tei'cst of mankind, and since, consequently, to advance that is to promote the public happiness in the best way, and in the greatest degree in which it can be promoted, it follows, that it is not only the right, but the duty of every magistrate, invested with supreme power, to enforce upon his subjects the reception" of that religion which he deems most acceptable to God, and to enforce it by such methods as may appear most effectual for the end proposed. A popish king-, for example, who should believe that salvation is not attainable out of the precincts of the Romish church, would derive a right from our principles (not to say that he would be bound by them) to employ the power witli which the constitution entrusted him, and which power, in absolute monarchies, commands the lives and fortunes of every subject of the emp4re, in reducing his people within that communion. We confess that this consequence is inferred from the principles we have laid down concerning the foundation of civil authority, not without the resemblance of a rej^ular deduction : we confess al- so, that it is a conclusion which it behoves us to dispose of; be- cause, if it really follows from our theory of government, the

AND TOLERATION. 405

theory itself ought to be given up. Now it will be remembered, that the terms of our proposition are these : " That it is lawful •* for the magistrate to interfere in the affairs of religion, when- " ever his interference appears to him to conduce, by its gener- " al tendency, to the public happiness." The clause of " gen- " eral tendency," when this rule comes to be applied, will be found a very significant part of the direction. It obliges the magistrate to reflect, not only whether the religion which he W'ishes to propagate amongst his subjects, be that which will best secure their eternal welfare ; not only whether the methods he Employs be likely to effectuate the establishment of that re- ligion ; but also upon this further question, whether the kind of interference which he is about to exercise, if it were adopted as a common maxim amongst states and princes, or received as a general rule for the conduct of government in matters of religion, would, upon the whole, and in the mass of instances in which his example might be imitated, conduce to the furtherance of human salvation. If the magistrate, for example, should think, that although the application of his power might, in the instance concerning which he deliberates, advance the true religion, and together with it the happiness of his people, yet that the same engine in another's hands, who might assume the right to use it with the like pretensions of reason and authority that he himself a'lleges, would more frequently shut out truth, and obstruct the means of salvation ; he would be bound by this opinion-, still admitting public utility to be the supreme rule of his conduct to refrain from expedients which, whatever particular effects he may expect from them, are, in their general operation, danger- ous or hurtful. If there be any difficulty in the subject, it aris- es from that which is the cause of every difficulty in morals, — the competition of particular and general consequences ; or, what is tbe same thing, the submission of one general rule to an- other rule which is still more general.

Bearing, then, in mind, that it is the general tendency of the meSsure, or, in other words, the effects which would arise from

406 RELIGIOUS ESTABLISHMENTS,

the measure being generally adopted, that fixes upon it the char- acter of rectitude or injustice, we proceed to inquire what is the degree and thcsort of interference of secular laws in matters of religion, which are likely to be beneficial to .the public happi- ness. There are two maxims which will in a great measure regulate our conclusions upon this head. The first is, that any form of Christianity is better than no religion at all ; the second, that of different systems of faith, that is the best which is the truest. The first of these positions will hardly be disputed, when we reflect that every sect and modification of Christianity holds out the happiness and misery of another life, as depend- ing chiefly upon the practice of virtue or of vice in this ; and that the distinctions of virtue and vice are nearly the same in all. A person who acts under the impression of these hopes and fears, though combined with many errors and superstitions, is more likely to advance both the public happiness and his own, than one who is destitute of all expectation of a future ac- count. The latter proposition is founded in the consideration, that the principal importance of religion consists in its influence upon the fate and condition of a future existence. This influ- ence belongs only to that religion which comes from God. A political religion may be framed, which shall embrace the pur- poses, and describe the duties, of political society perfectly well ; but if it be not delivered by God, what assurance does it afford, that the decisions of the divine judgment will have any regard to the rules which it contains ? By a man who acts with a view to a future judgment, the authority of a religion is the first thing inquired after ; a religion which wants authority, with him wants every thing. Since, then, this authority apper- tains, not fo the religion which is most commodious, — to the religion which is most sublime and efficacious, — to the religion which suits best with the constitution, or seems most calculated to uphold the power and stability of civil government, but on- ly to that religion which comes from God ; we are justified in pronouncing the true religion, by its very truthy and independ-

AND TOLERATION. 407

eiitiy of all considerations of tendencies, aptnesses, or any other internal qualities whatever, to be universally the best.

From the first proposition follows this inference, that when the state enables its subjects to learn some form of Christianity, by distributing teachers of a religious system throughout the country, and by providing for the maintenance of these teachers at the public expense ; that is, in fewer terms, when the laws establish a national religion, they exercise a power and an inter- ference which are likely, in their general tendency, to promote the interest of mankind ; for even supposing the species of Chris- tianity which the laws patronize to be erroneous and corrupt, yet when the option lies between this religion and no religion at all, (which would be the consequence of leaving the people without any public means of instruction, or any regular celebra- tion of the offices of Christianity,) our proposition teaches us that the former alternative is constantly to be preferred.

But after the right of the magistrate to establish a particular religion has been, upon this principle, admitted, a doubt some- times presents itself, whether the religion which we ought to es- tablish, be that which he himself professes, or that which he ob- serves to prevail amongst the majority of the people. Now, when we consider this question, with a view to the formation of a general rule upon the subject, (which view alone can furnish a just solution of the doubt,) it must be assumed to be an equal chance whether of the two religions contains more of truth, — that of the magistrate, or that of the people. The chance then that is left to truth being equal upon both suppositions, the remaining consideration will be, from which arrangement more efficacy can be expected ; — from an order of men appointed to teach the people their own religion, or to convert them to another ? In my opinion the advantage lies on the side of the former scheme ; and this opinion, if it be assented to, makes it the duty of the magis- trate, in the choice of the religion which he establishes, to con- sult the faith of the nation rather than his own.

The case also of dissenters must be determined by the prin- 53

408 RELIGIOUS ESTABLISHMENTS,

ciples just now stated. Toleration is of two kinds ; — the allow- ing to dissenters the unmolested profession and exercise of their religion, but with an exclusion from offices of trust and emolu- ment in the slate ; which is a partial toleration : and the admit- ting them, without distinction, to all the civil privileges and ca- pacities of other citizens ; which is a complete toleration. The expediency of toleration, and, consequently, the right of every citizen to demand it, as far as relates to liberty of conscience, and the claim of being protected in the free and safe profession s>f his religion, is deducible from the second of these propositions, which we have delivered as the grounds of our conclusions upon the subject. That proposition asserts truth, and truth in the ab- stract, to be the supreme perfection of every religion. The ad- vancement, consequently, and discovery of truth, is that end to which all regulations concerning religion ought principally to be adapted. Now, every species of intolerance which enjoins sup- pression and silence, and every species of persecution which en- forces such injunctions, is adverse to the progress of truth ; for- asmuch as it causes that to be fixed by one set of men, at one time, which is much better, and with much more probability of success, left to the independent and progressive inquiries of sep- arate individuals. Truth results from discussion and from con- troversy ; is investigated by the labours and researches of pri- vate persons. Whatever, therefore, prohibits these, obstructs that industry and that liberty, which it is the common interest of mankind to promote. In religion, as in other subjects, truth, if left to itself, will almost always obtain the ascendancy. If dif- ferent religions be professed in the same country, and the minds of men remain unfettered and unawed by intimidations of law, that religion which is founded in maxims of reason and credibil- ity, will gradually gain over the other to it. I do not mean that men will formally renounce their ancient religion, but that they will adopt into it the more rational doctrines, the improvements and discoveries, of the neighbouring sect ; by which means the worse religion, without the ceremony of a reformation, will in-

AND TOLERATION. 40S

iiensibly assimilate itself to the better. If Popery, for instance, and Protestantism were permitted to dwell quietly together, Pa- pists might not become Protestants, (for the name is commonly the last thing that is changed,)* but they would become morp enlightened and informed ; they would by little and little incor- porate into their creed many of the tenets of Protestantism, as well as imbibe a portion of its; spirit and moderation.

The justice and expediency of toleration we found primarily in its conduciveness to truth, and in the superior value of truth to that of any other quality which a religion can possess : this is the principal argument ; but there are some auxiliary considera- tions, too important to be omitted. The confining of the subject to the religion of the state, is a needless violation of natural lib- erty, and in an instance in which constraint is always grievous. Persecution produces no sincere conviction, nor any real change of opinion ; on the contrary, it vitiates the public morals, by driving men to prevarication, and commonly ends in a general though secret infidelity, by imposing, under the name of revealed religion, systems of doctrine which men cannot believe, and dare not examine : finally, it disgraces the character, and wounds the reputation of Christianity itself, by making it the author of oppression, cruelty, and bloodshed.

Under the idea of religious toleration, I include the toleration of all books of serious argumentation : but 1 deem it no infringe- ment of religious liberty, to restrain the circulation of ridicule, invective, and mockery, upon religious subjects ; because this species of writing applies solely to the passions, weakens the judgment, and contaminates the imagination of its readers ; has no tendency whatever to assist either the investigation or the impression of truth : on the contrary, whilst it stays not to dis- tinguish the character or authority of different religions, it de- stroys alike the influence of all.

* Would we let the name stand, we might often attract men, without their perceiving it, much nearer to ourselves, than, if Ihey did perceive it. they wouM be willing to come.

410 RELIGIOUS ESTABLISHMENTS,

Concerning the admission of dissenters from the established religion to offices and employments in the public service, (which is necessary to render toleration complete,) doubts have been en- tertained, with some appearance of reason. It is possible that such religious opinions may be holden, as are utterly incompat- ible with the necessary functions of civil government ; and which opinions consequently disqualify those who maintain them, from exercising any share in its administration. There have been enthusiasts who held that Christianity has abolished all distinc- tion of property, and that she enjoins upon her followers a com- munity of goods. With what tolerable propriety could one of this sect be appointed a judge or a magistrate, whose office it is to decide upon questions of private right, and to protect men in the exclusive enjoyment of their property ? It would be equally ab- surd to entrust a military command to a Quaker, who believes it to be contrary to the Gospel to take up arms. This is possible ; therefore it cannot be laid down as a universal truth, that religion is not in its nature, a cause which will justify exclusion from pub- lic employments. When we examine, however, the sects of Christianity which actually .prevail in the world, we must con- fess that, with the single exception of refusing to bear arms, we find no tenet in any of them which incapacitates men for the service of the state. It has indeed been asserted, that discord- ancy of religions, even supposing each religion to be free from any errors that affect the safety or the conduct of government, is enough to render men unfit to act together in public stations. But upon what argument, or upon what experience is this asser- tion founded ? I perceive no reason why men of different reli- gious persuasions may not sit upon the same bench, deliberate in the same council, or fight in the same ranks, as well as men of various or opposite opinions upon any controverted topic of natural philosophy, history, or ethics.

There are two cases in which test laws are wont to be applied, and in which, if in any, they may be defended. One is, where two or more religions are contending for establishment ; ano

AND TOLERATlOxN. 411

where tiiQ^-e appears no way of putting an end to the contest, but by giving to oiie religion such a*^3ecided superiority in the legis- lature and government of the country, as to secure it against danger from any other. I own that I should assent to this pre- caution with many scruples. If the dissenters from the estab- lishment become a majority of the people, the establishment it- self ought to be altered or qualified. If there exist amongst the different sects of the country such a parity of numbers, interest, and power, as to jender the preference of one sect to the rest, and the choice of that sect a matter of hazardous success, and of doubtful election, some plan similar to that which is meditated in North America, and which we have described in a preced- ing part of the present chapter, may perhaps suit better with this divided state of public opinions, than any constitution of a na- tional church whatever. In all other situations, the establish- ment will be strong enough to maintain itself. However, if a test be applicable with justice upon this principle at all, it ought to be applied in regal governments to the chief magistrate him- self, whose power might otherwise overthrow or change the es- tablished religion of the country, in opposition to the will and sen- timents of the people.

The second case of exclusion, and in which, I think, the meas- ure is more easily vindicated, is that of a country in which some disaffection to the subsisting government happens to be connect- ed with certain religious distinctions. The state undoubtedly has a right to refuse its power and its confidence to those who seek its destruction. Wherefore, if the generality of any reli- gious sect entertain dispositions hostile to the constitution, and if government have no other way of knowing its enemies than by the religion which they profess, the professors of that religion may justly be excluded from ofl'ices of trust and authority. But tven hei-e it should be observed, that it is not against the re- ligion that government shut its doors, but against those political principles, which however independent they may be of any article of religious faith, the mpm1)cr! of that community are

412 RELIGIOUS ESTABLISHMENTS,

found in tact to hold. Nor would the legislator make religour tenets the test of men's inclinations towards the state, if he could discover any other that was equally certain and notorious. Thus, if the members of the Romish church, for the most part, adhere to the interest, or maintain the right of a foreign pretender to the crown of these kingdoms ; and if there be no way of distinguish- ing those who do from those who do not retain such dangerous prejudices ; government is well warranted in fencing out the whole se«t from situations of trust and power. But even in this example, it is rot to Popery that the laws object, but to Popery as the mark ot Jacobitism ; an equivocal, indeed, and fallacious mark, but the best, and perhaps the only one that can be devised. But then it should be remembered, that as the connexion between Popery and Jacobitism, which is the sole cause of suspicion, and the sole justification rtf those severe and jealous laws which have been enacted against the professors of that religion, was accident- al in its origin, so probably it will be temporary in its duration ; and that these restrictions ought not to continue one day longer than some visible danger renders them necessary to the preser- vation of public tranquillity.

After all it may be asked, why should not the legislator di- rect his test against the political principles themselves which he wishes to exclude, rather than encounter them through the me- dium of religious tenets, the only crime and the only danger of which consist in their presumed alliance with the former? Why for example, should a man be required to renounce transubstan- tistion before he be admitted to an oflTice in the state, when it might seem to be sufficient that he abjure the pretender? There are but two answers that can be given to the objection which this question contains ; first, That it is not opinions which the laws fear, so much as inclinations ; and that political inclinations are not so easily detected by the affirmation or denial of any ab- stract proposition in politics, as by the discovery of the religious creed with which they are wont to be united : secondly, That when men renounce their religion, they commonly quit all con-

AND TOLERATION. 413

nexion with the members of the church which they have left, that church no longer expecting assistance or friendship from them ; whereas particular persons might insinuate themselves into offices of trust and authority, by subscribing political asser- tions, and yet retain their predilection for the interests of the re- ligious sect to which they continued to belong. By which means, government would sometimes find, thougli it could not accuse the individual whom it had received into its service, of disaflfection to the civil establishment, yet that, through him, it had communicated the aid and influence of a powerful station to a party who were hostile to the constitution. These answers, however, we propose rather than defend. The measure cer- tainly cannot be defended at all, except where the suspected union between certain obijioxious principles in politics, and cer- tain tenets in religion, is nearly universal ; in which case it makes little difference to the subscriber whether the test be re- ligious or political ; and the state is somewhat better secured by the one than the other.

The result of our examination of those general tendencies, by which every interference of civil government in matters of re- ligion ought to be tried, is this : " That a comprehensive na- " tional religion, guarded by a few articles of peace and con- " formity, together with a legaj provision for the clergy of that " religion : and with a complete toleration of all dissenters from *' the established church, without any other limitation or excep- *' tion than what arises from the conjunction of dangerous politi- " cal dispositions with certain religious tenets, appears to be,, •' not only the most just and liberal, but the wisest and safest "system, which a state can adopt ; inasmuch as it unites. the " several perfections which a religious constitution ought to aim " at, — liberty of conscience, vv'ith means of instruction ; the *' progress of truth, with the peace of society ; the right of pri~ '•' vate judgment, with the care of the public safety."

414 OF POPULATION

CHAPTER XI.

OF POPULATION AND PROVISION; AND OF AGRICULTURE AND COMMERCE, AS SUBSERVIENT THERETO.

THE final view of all rational politics is, to produce the great- est quantity of happiness in a giver\ tract of country. The rich- es, strength, and glory of nations ; the topics which history cel- ebrates, and which alone almost engage the praises, and possess the admiration of mankind, have no value further than as they contribute to this end. When they interfere with it, they are evils, and not the less real for the splendour that surrounds them.

Secondly, Although we speak of communities as of sentient beings ; although we ascribe to them happiness and misery, de- sires, interests, and passions, nothing really exists or feels but individuals. The happiness of a people-is made up of ttJ^ hap- piness of single persons ; and the quantity of happiness can on- ly be augmented by increasing the number of the percipients, or the pleasure of their perceptions.

Thirdly, Notwithstanding that diversity of condition, espe- cially different degrees of plenty, freedom, and security, great- ly vary the quantity of happiness enjoyed by the same number of individuals-^ and notwithstanding that extreme cases may be found, of human beings so galled by the rigours of slavery, that the increase of numbers is only the amplification of misery ; yet, within certain limits, and within those limits to which civil life is diversified under the temperate governments that obtain in Eu- rope, it may be affirmed, I think, with certainty, that the quan- tity of happiness produced in any given district, so far depends upon the number of inhabitants that, in comparing adjoining pe- riods in the same country, the collective happiness will be near- ly in the exact proportion of the numbers, that is, twice the number of inhabitants will produce double the quantity of bap-

AND PROVISION. 413

Jiiiiess ; in distant periods, and different countries, under great changes or great dissimilitude of civil condition, although the pro- portion of enjoyment may fall much short of that of the numbers, yet still any considerable excess of numbers will usually carry with it a preponderation of happiness ; that, at least, it may, and ought to be assumed in all political deliberations, that a larger portion of happiness is enjoyed amongst ten persons, possessing the means of healthy subsistence, than can be produced by Jive persons, under every advantage of power, affluence, and luxury.

From these principles it follows, that the quantity of happiness in a given district, although it is possible it may be increased, the number of inhabitants remaining the same, is chiefly and most naturally affected by alterati(>n of the numbers : that, con- sequently, the decay of population is the greatest evil that a state can suffer ; and the improvement of it the object which ought, in all countries, to be aimed at, in preference to every other political purpose whatsoever.

The importance of population, and the superiority of zV to ev- ery other national advantage, are points necessary to be incul- cated, and to be well understood ; inasmuch as false estimates, or fantastic notions of national grandeur, are perpetually draw- ing the attention of statesmen and legislators from the care of this, which is, at all times, the true and absolute interest of a country ; for which reason, we have stated these points with un- usual formality. We will confess, however, that a competition can seldom arise between the advancement of population and any measure of sober utility ; because, in the ordinary progress of human affairs, whatever in any way contributes to make a people happier, tends to render them more numerous.

In the fecundity of the human, as of every other species of animals, nature has provided for an indefinite multiplication. Mankind have increased to their present number from a single pair : the offspring of early marriages, in the ordinary course of procreation, do more than replace the parents : in countries, and under circumstances very favourable to subsistence, the 51

41G OF rorULATION'

population has been doubleel in tlie space ol twenty years , tfie havoc occasioned by ^vars, earthquakes, famine, or pestilence, is usually repaired in a short time. These indications suffi- ciently demonstrate the tendency of nature, in the human spe- cies, to a continual increase of its numbers. It becomes there- fore a question that may reasonably be propounded. What are the causes which confine or check the natural progress of this multiplication? And the answer which first presents itself to the thoughts of the enquirer is, that the population of a country must stop when the country can maintain no more, that is, when the inhabitants are already so numerous as to exhaust all the provision which the soil can be made to produce. This, how- ever, though an insuperable bar, will seldom be found to be that which actually checks the progress of population in any country of the world, because the number of the people have seldom, in any country, arrived at this limit, or even approached to if. The fertility of the ground, in temperate regions, is capable of being improved by cultivation to an extent which is unknown ; much, however, beyond the state of improvement in any coun- try in Europe. In our own, which holds almost the first place in the knowledge and encouragement of agriculture, let it only be supposed that every field in England, of the same original quality with those in the neighbourhood of the metropolis, and consequently capable of the same fertility, were, by a like man- agement, made to yield an equal produce ; and it may be as- serted, 1 believe with truth, that the quantity of human provi- sion raised in the island would be increas»jd five-fold. The two principles, therefore, upon which population seems prima- rily to depend, the tecundity of the species, and the capacity of the soil, would in most, perhaps in all countries enable it to proceed much further than it has yet advanced. The number of marriageable women, who, in each country, remain unmarri- ed, afford a computation how much the agency of nature in the diffusion of human life is cramped and contracted : and the quan- tity of waste, neglected, or mismanaged surface, — together with

AND PROVISION. 417

& comparison, like the preceding, of the crops raised from the soil in the neighbourhooAof populous cities, and under a perfect state of cultivation with those which lands of equal or superior -quality yield in different situations, — will show in what propor- tion the indigenous productions of the earth are capable of being further augmented.

The. fundamental proposition upon the subject of population^ which must guide every endeavour to improve it, and from which every conclusion concerning it may be deduced, is this : " Where- ' ever the commerce between the sexes is regulated by mar- " riage, and a provision for that mode of subsistence, to which " each class of the community is accustomed, can be procured ^' with ease and certainty, there the number of the people will " increase ; and the rapidity, as well as the extent of the in- " crease, will be proportioned to the degree in which these '^' causes exist."

This proposition we will draw out into the several principles which it contains.

I. First, the proposition asserts the "necessity of confining " the intercourse of the sexes to the marriage union." It is on- ly in the marriage union that this intercourse is sufficiently pro- lific. Beside which, family establishments alone are fitted to perpetuate a succession of generations. The offspring of a vague and promiscuous concubinage are not only few, and liable to perish by neglect, but are seldom prepared for or introduced in- to situations suited to the raising of families of their own. Hence the advantages of marriage. Now nature, in the constitution of the sexes, has provided a stimulus which will infallibly secure the frequency of marriages, with all their beneficial effects upon the state of population, provided the male part of the species be prohibited from irregular gratifications. This impulse, which is sufficient to surmount almost every impediment to marriage, will operate in proportion to the difficulty, expense, danger, or infa- iny, the sense of guilt, or the fear of punishment, which attend ilioentious indulgences. Wherefore, in countries in which sub=

41 S OF POPULATION

sistence is become scarce, it behoves the state to watch over the public morals with increased solicitude ; for, nothing but the in- stinct of nature, under the restraint of chastity, will induce men to undertake the labour, or consent to the sacrifice of personal liberty and indulgence, which the support of a family, in such circumstances, requires.

II. The second requisite which the proposition states as neces- sary to the success of population, is, " The ease and certainty *' with which a provision can be procured for that mode of sub- " sistence to which each class of the community is accustomed.'' !t is not enough that men's natural wants be supplied ; that 2t provision adequate to the actual exigencies of human life be at- tainable : habitual superfluities become real wants ; opinion and fashion, convert articles of ornament and luxury into necessaries of life. And it must not be expected from men in general, at least in the present relaxed state of morals and discipline, that they will enter into marriages which degrade their condition, reduce their mode of living, deprive them of the accommodations to which they have been accustomed, or even of those ornaments or appendages of rank and station, which they have been taught to regard as belonging to their birth, or class, or profession, or place in society. The same consideration, namely, a view to their accustomed mode of life, which is so apparent in the supe- rior orders of the people, has no less influence upon tho^e ranks which compose the mass of the community. The kind and quality of food and liquor, the species of habitation, furniture, and clothing, to which the common people of each country are habituated, must be attainable with ease and certainty before marriages will be sufficiently early and general to carry the prog- ress of population to its just extent. It is in vain to allege, that a more simple diet, ruder habitations, or coarser apparel, would be sufficient for the purposes of life and health, or even of phy- sical ease and pleasure. Men will not marry with this encour- agement. For instance, when the common people of a country RT; acrnstnmed to ^at a birge proportion of animal food, to drink

AND PROVISION. 419

wine, spirits, or beer, to wear shoes and stockings, to dwell in stone houses, they will not marry to live in clay cottages, upon roots and milk, with no other clothing than skins, or what is ne- cessary to defend the trunk of the body from the effects of cold ; although these last may be all that the sustentation of life and health requires, or that even contribute much to animal comfort and enjoyment.

The ease, then, and certainty, with which the means can be procured, not barely of subsistence, but of that mode of subsist- ing which custom hath in each country established, form the point upon which the state and progress of population chiefly depend. Now, there are three causes which evidently regulate this point : the mode itself of subsisting which prevails in the country ; the quantity of provision suited to that mode of subsistence, which is either raised in the country, or imported into it ; and, lastly, the distribution of that provision.

These three causes merit distinct considerations.

I. The mode of living which actually obtains in a country. In China, where the inhabitants frequent the sea-shore, and. sub- sist in a great measure upon fish, the population is described to be excessive. This peculiarity arises, not probably from any civil advantages, any care or policy, any particular constitution or superior wisdom of government, but simply from hence, that the species of food to which custom hath reconciled the desires and inclinations of the inhabitants, is that which, of all others, is procured in the greatest abundance, with the most ease, and stands in need of the least preparation. The natives of Indostan being confined, by the laws of their religion, to the use of vege- table food, and requiring little except rice, which the country produces in plentiful crops ; and food, in warm climates, com- posing the only want of life ; these countries are populous, un- der all the injuries of a despotic, and the agitations of an unset- tled government. If any revolution, or what would be called perhaps refinement of manners, should generate in these people u taste for the flesh of animals, similar to what prevails amongst

420 OF POPULATION

U»e Arabian hordes ; should introduce flocks and herds into grounds which are now covered with com ; should leach them to account a certain portion of this species of food amongst the necessaries of life ; the population, from this single change, would suffer in a few years a great diminution : and this diminu- tion would follow, in spite of every effort of the laws, or even of any improvement that might take place in their civil condition. In Ireland, the simplicity of living alone maintains a considera- ble degree of population, under great defect* of police, industry, and commerce.

Under this head, and from a view of these considerations, may be understood the true evil and proper danger oi luxury.

Luxury, as it supplies employment and promotes Industry, as- sists population. But then there is another consequence attend- ing it, which counteracts and often overbalances these advantages. When, by introducing more superfluities into general reception, luxury has rendered the usual accommodations of life more ex- pensive, artificial, and elaborate, the difficulty of maintaining a family, conformably with the established mode of living, be- comes greater, and what each man has to spare from his person- al consumption proportionably less : the eiFecl of which is, that marriages grow less frequent, agreeably to the maxim above laid down, and which must be remembered as the foundation of all our reasoning upon the subject, that men will not marry to sink their place or condition in society, or to forego those indulgen- cies which their own habits, or what they observe amongst their equals, have rendered necessary to their satisfaction. This principle is applicable to every article of diet and dress, to hous- es, furniture, attendance ; and this effect will be felt in every class of the community. For instance, the custom of wearing broad cloth and fine linen repays.the shepherd and flax-grower, feeds the manufacturer, enriches the merchant, gives not only support but existence to multitudes of families : hitherto, there- fore, the effects arc beneficial ; and were these the only effects, such elegancies, or, if you please to call them so, such luxuries.

AND PROVISION. 421

could not be too universal. But here follows the mischief: when once fashion hath annexed the use of these articles of dress to any certain class, to the middling ranks, for example, of the community, each individual of that rank finds them to be neces- saries of life ; that is, finds himself obliged to comply with the example of his equals, and to maintain that appearance which the custom of society requires. This obligation creates such a demand upon his income, and withal adds so much to the cost and burthen of a family, as to put it out of his power to marry, with the prospect of continuing his habits, or of maintaining his j)lace and situation in the world. We see, in this description, the cause which induces men to waste their lives in a barren ce- libacy ; and this cause, which impairs the very source of popu- lation, is justly placed to the account of luxury.

It appears, then, that luxury^ considered with a view to pop- ulation, acts by two opposite effects ; and it seems probable, that there exists a point in the scale, to which luxury may as- cend, or to which the wants of mankind may be multiplied with advantage to the community, and beyond which the prejudicial effects begin to preponderate. The determination of this point, though it assume the form of an arithmetic'al problem, depends upon circumstances too numerous, intricate, anS undefined, to admit of a precise solution. However, from what has been ob- served concerning the tendency of luxury to diminish marriages, in which tendency the evil of it resides, the following general conclusions may be established.

1st, That, of different kinds of luxury, those are the most in- nocent, which afford erajiloyment to the greatest number of art- ist* and manufacturers ; or those, in other words, in which the price of the woik bears the greatest proportion to that of the raw material. Thus, luxury in dress or furniture is universally pre- ferable to luxury in eating, because the artTcies which constitute the one, are more the production of human art and industry, than those which supply the other.

2dly, That it is the diffusio7i rather than the degree of luxury.

422 OF POPULATION

which is to be dreaded as a national evil. The mischief of luX ury consists, as we have seen, in the obstruction \Yhicl) it forms to marriage. Now, it is only a small part of the people that the higher ranks in any country compose ; for which reason, the fa- cility or the difficulty of supporting the expense of their station, and the consequent increase or diminution of marriages amongst them, will influence the state of population but little. So long as the prevalency of luxury is confined to a few of elevated rank, much of the benefit is felt, and little of the inconveniency. But when the imitation of the same manners descends, as it always will do, into the mass of the people ; when it advances the re- quisites of living beyond what it adds to men's abilities to pur- chase them ; then it is that luxury checks the formation of fam- ilies, in a degree that ought to alarm the public fears.

3dly, That the condition most favourable to population is that of a laborious, frugal people, ministering to the demands of an opulent, luxurious nation ; because this situation, whilst it leaves them every advantage of luxury, exempts them from the evils which naturally accompany its admission into any country.

II. Next to the mode of living, we are to consider '* the quan- *' tity of provision suited to that mode, which is either raised in " the country, (St imported into it :" for this is the order in which we assigned the causes of population, and undertook to treat of them. Now, if we measure the quantity of provision by the number of human bodies it will support in due health and vigour, this quantity, the extent and quality of the soil from which it is raised being given, will depend greatly upon the kind. For in- stance, a piece of ground capable of supplying animal food suf- ficient for the subsistence often persons, would sustain, at least, the double of that number with grain, roots, and milk. The first resource of savage life is in the flesh of wild animals ; hence the numbers amongst savage nations, compared with the tract of coun- try which they occupy, are universally small ; because this spe- cies of provision is, of all others, supplied in the slenderest pro- portion. The next step was the invention of pasturage, or the

AND PROVISION. 423

rearing of flock* and herds of tame animals : this alteralion add- ed to the stock of provision much. But the last and principal improvement was to follow ; namely, tillage, or the artificial production of corn, esculent plants, and roots. This discovery, whilst it changed the quality of human food, augmented the quan- tity in a vast proportion. So far as the state of population is governed and limited by the quantity of provision, perhaps there is no single cause that affects it so powerfully, as the kind and quality of food which chance or usage hath introduced into a country. In England, notwithstanding the produce of the soil has been, of late, considerably increased, by the enclosure of wastes, and the adoption, in many places, of a more successful husbandry, yet we do not observe a corresponnding addition to the number of inhabitants ; the reason of which appears to me to be the more general consumption of animal food amongst us. Many ranks of people, whose ordinary diet was in the last cen- tury prepared almost entirely from milk, roots, and vegetables, now require every day a considerable portion of the flesh of an- imals. Hence a great part of the richest lands of the country are converted to pasturage. Much also of the bread-corn, which went directly to the nourishment of human bodies, now only con- tributes to it by fattening the flesh of sheep and oxen. The mass and volume of provisions are hereby diminished ;^and what is gained in the melioration of the soil, is lost in the quality of pro- duce. This consideration teaches us, that tillage, as an object of national care and encouragement, is universally preferable to pasturage, because the kind of provision which it yields goes much further in the sustentation of human life. Tillage is also recommended by this additional advantage, that it affords em- ployment to a much more numerous peasantry. Indeed, pas- turage seems to be the art of a nation, either imperfectly civil- ized, as are many of the tribes which cultivate it in the internal parts of Asia ; or of a nation, like Spain, declining from its sum- mit by luxury and inactivity.

The kind and quality of provision, together with the extent 55

lii OF POPULATION

and capacity ol' the soil from which it is raised, being the same "die quantity procured will principally depend upon two circuni ■ itances, — the ability of the occupier, and the encoxn-Uircinent which he receivcsi. The greatest misfortune of a country is an indigent tenantry. Whatever be the native advantages of the soil, or even the skill and industry of the occupier, the want of a sufficient capital confines every plan, as well as cripples and weakens every operation of husbandry. This evil is felt where agriculture is accounted a servile or mean empvloyment ; where farms are extremely subdivided, and badly furnished with hab- itations ; where leases are unknown, or are of short or precarious duration. With respect to the encouragement of husbandry ; in this, as in every other employment, the true reward of industry is in the price and sale of the produce. The exclusive right to the produce is the only incitement which acts constantly and universally ; the only spring which keeps human labour in mo- tion. All therefore that the laws can do, is, to secure this right to the occupier of the ground, that is, to constitute such a systeir. of tenure, that the full and entire advantage of every improve- ment go to the benefit of the improver ; that every man work for himself, and not for another ; and that no one share in the profit who does not assist in the production. By the occupier I here mean, not so much the person who performs the work, as him who procures the labour and directs the management ; and I consider the whole profit as received by the occupier, when the occupier is benefitted by the whole value of what is produced; which is the case with the tenant who pay* a fixed rent for the use of land, no less than with the proprietor who holds it as his own. The one has the same interest in the produce, and in the advantage of every improvement, as the other. Likewise the proprietor, though he grant out his estate to farm, may be con- sidered as the occupier, in so much as he regulates the occupa- tion by the choice, superintendency, and encouragement of his tenants, by the disposition of his lands, by erecting buildings, providing accommodations, by prescribing conditions, or supply-

AND PROVISION. 425

mg implements and materials of improvement ; and is entitled, by the rule of public expediency above-mentioned, to receive, in the advance of his rent, a share of the benefit which arises from the increased produce of his estate. The violation of this fundamental maxim of agrarian policy constitutes the chief ob- jection to the holding of lands by the state, by the king, by cor- porate bodies, by private persons in right of their ofnces or ben- efices. The inconveniency to the public arises not so much from the unalienable quality of lands thus holden in perpetuity, as from hence, that proprietors of this description seldom contribute much either of attention or expense to the cultivation of their es- tates, yet claim, by the rent, a share in the profit of every im- provement that is made upon them. This complaint can only be obviated by " long leases at a fixed rent," which conv'ey a large portion of the interest to those who actually conduct the cultivation. The same objection is applicable to the holding of lands by foreign proprietors, and in some degree to estates of too great extent being placed in the same hands.

111. Beside the production o{ provision, there remains to be -considered the distribution. — It is in vain that provisions abound in the country, unless I be able to obtain a share of them. This reflection belongs to every individual. The plenty of pro- vision produced, the quantity of the public stock, affords sub- sistence to individuals, and encouragement to the formation of families, only in proportion as it is distributed, that is, in pro- portion as these individuals are allowed to draw from it a supply of their own wants. The distribution, therefore, becomes of equal consequence to populatign with the production. Now, there is but one principle of distribution that can ever become universal, namely, the principle of " exchange ;" or, in other words, that every man have something to give in return for wha*: he wants. Bounty, however it may come in aid of another prin- ciple, however it may occasionally qualify the rigour, or supply the imperfection of an established rule of distribution, can never itself become that rule or principle ; however it mar occ^sion?^ i

42t» OF POPULATION

qualify the rigour, or supply the imperfection of an established rule of distribution, can never itself become that rule or princi- ple ; because men will not work to give the produce of their la- bour away. Moreover, the only equivalents that can be offered in exchange for provision are, power and labour. All property is power. What we call property in land, is the power to use it, and to exclude others from the use. Money is the represen- tative of power, because it is convertible into power ; the value of it consists in its faculty of procuring power over things and persons. But pozyer which results from civil conventions (and of this kind is what we call a man's fortune or estate,) is neces- sarily confined to a few, and is withal soon exhausted ; whereas, the capacity of labour is every man's natural possession, and composes a constant and renewing fund. The hire, therefore, or produce of personal industry, is that which the bulk of every community must bring to market, in exchange for the means of subsistence ; in other words, employment must, in every country, be the medium of distribution, and the source of supply to individuals. But when we consider the production and distribution of provision, as distinct from, and independent of each other ; when, supposing the same quantity to be produ- ced, we inquire in what way, or according to what rule, it may be distributed, we are led to a conception of the subject not at all agreeable to truth and reality ; for, in truth and reality, though provision must be produced before it be distributed, yet the production depends, in a great measure, upon the distribu- tion. The quantity of provision raised out of the ground, so far as the raising of it requires human art or labour, will evidently be regulated by the demand ; the demand, or, in other words, the price and sale, being that which alone rewards the care, or excites the diligence of the husbandman. But the sale of pro- vision depends upon the number, not of those who want, but of those who have something to offer in return for what they want ; rut of those who would consume, but of those who can buy ; that is, upon the number of those who have the fruits of some o'.her

J

AND PROVISION'. 427

kind of industry to tender in exchange for what they stand in need of from the production of the soil.

We see, therefore the connexion between population and em- ployment. Employment affects population " directly," as it af- fords the only medium of distribution by which individuals can obtain from the common stock a supply for the wants of their families ; it affects population " indirectly," as it augments the ?tock itself of provision, in the only way by which the produc- tion of it can be effectually encouraged, — by furnishing purchas- ers. No man can purchase without an equivalent ; and that equivalent, by the generality of the people, must in every country be derived from employment.

And upon this basis is founded the public benefit of trade, that is to say, its subserviency to population, in which its only real titility consists. Of that industry, and of those arts and branch- es of trade, which are employed in the production, conveyance, and preparation of any principal species of human food, as of the business of the husbandman, the butcher, baker, brewer, corn-merchant, &:c. we acknowledge the necessity : likewise of those manufactures which furnish us with warm clothing, conve- nient habitations, domestic utensils, as of the weaver, tailor, smith, carpenter, &:c. we perceive (in climates, however, like ours, removed at a distance from the sun,) the conduciveness to population, by their rendering human life more healthy, vigorous, and comfortable. But not one half of the occupations which compose the trade of Europe, fall within either of these descrip- tions. Perhaps two-thirds of the manufacturers of England are employed upon the articles of confessed luxury, ornament, or splendour ; in the superfluous embellishment of some articles which are useful in their kind, or qpon others which have no conceivable use or value, but what is founded in caprice or fash- ion. What can be less necessary, or less connected with the sustentation of human life, than the whole produce of the silk, lace, and plate manufactory ? yet what multitudes labour in the different branches of these arts ! What can be imajrined more

428 OF AGIIICULTURE,

■capricious tlian the fondness for tobacco and snuff ? yet how ma- ny various occupations, and how many thousands in each, are set at work in administering to this frivolous gratification ! Con- corning trades of this kind (and this kind comprehends more than half of the trades that arc exercised,) it may fairly be asked, " How, since they add nothing to the stock of provision, do they " tend to increase the number of the people ?" We are taught to say of trade, " that it maintains multitudes ;"' but by what means does it maintain them, when it produces nothing upon which the support of human life depends ? — In like manner with respect to foreign commerce j of that merchandise which bring? the necessaries of life into a country, which imports, for exam- ple, corn, or cattle, or cloth, or fuel, w'e allow the"tendency to advance population, because it increases the stock of provision by which the people are subsis'ted. But (his e0ect of foreign commerce is so little seen in our own country, that, I believe, it may be affirmed of Great Britain, vvlrat Bishop Berkley said of .1 neighbouring island, that, if it was encompassed with a wall of brass fifty cubits high, the country might maintain the same number of inhabitants that find subsistence in it at present ; and that every necessary, and even every real comfort and accom- modation of human life, might be supplied in as great abundance as they are nov7. Here, therefore, as before, we may fairly ask, by what operation it is, that foreign commerce, which brings in- to the country no one article of human subsistence, promotes the multiplication of human life ?

The answer to this inquiry will be contained in the discussion of another, viz.

Since the soil will maintain more than it can employ, what must be done, supposing the country to be full, with the remain- der of the inhabitants ? They who, by the rules of partition, {and some such must be established in every country,) are en- titled to the land ; and they who, by their labour upon the soil, acquire a right in its produce, will no4 pai:t with their property for nothing ; or rather, they will no longer raise from the soil

AND COMMERCE. 429

^vliat they can neither use themselves, nor exchange for what they want. Or, lastly, if these were willing to distribute what they could spare of the provision which the ground yielded, to others who had no share or concern in the property or cultiva- tion of it, yet still the most enormous mischiefs would ensue from great numbers remaining unemployed. The idleness of one half of the community would overwhelm the whole with confusion and disorder. One only way presents itself of removing the dif- ficulty which this question states, and which is simply this ; that they, whose work is not wanted, nor can be employed in the raising of provision out of the ground, convert their hands and ingenuity to the fabrication of articles which may gratify and re- quite those who are so employed, or who, by the division of lands in the country, are entitled to the exclusive possession of certain parts of them. By this contrivance, all things proceed well. The occupier of the ground raises from it the utmost that he can procure, because be is repaid for what he can spare by something else which he wants, or with which he is pleased : the artist and manufacturer, though he have neither any proper- ty in the soil, nor any concern in its cultivation, is regularly supplied with the produce, because he gives, in exchange for what be stands in need of, something upon which the receiver places an equal value ; and the community is kept quiet, while both sides are engaged in their respective occupations.

It appears, then, that the business of one half of mankind is, to set the other half at work ; that is, to provide articles which, by tempting the desires,. may stimulate the industry, and call forth the activity of those upon the exertion of whose industry, and the application of whose faculties, the production of hgman pro- vision depends. A certain portion only of human labour is, or can be productive ; the rest is instrumental; — both equally ne- cessary, theugh the one have no other object than to excite the other. It appears also, that it signifies nothing, as to the main purpose of trade, how superfluous the articles which it furnishes ore ; whether the want of them be real or imaginary, founded

4.SU OF AGRlCULTUKi:,

in nature or in opinion, in fashion, habit, or emulation; it is enough that they be actually desired and sought after. Flour- ishing cities are raised and supported by trading in tobacco; populous towns subsist by the manufactory of ribbands. A watch may be a very unnecessary appendage to the dress of a peasant ; yet if the peasant will till the ground in order to obtain a watch, the true design of trade is answered ; and the watchmaker, while he polishes the case, or files the wheels of his machine, is con- tributing to the production of corn as effectually, though not so directly, as if he handled the spade or held the plough. The use of tobacco has been mentioned already, as an acknowledged superfluity, and as affording a remarkable example of the caprice of human appetite : yet, if the fisherman will ply his nets, or the mariner fetch rice from foreign countries, in order to pro- cure to himself this indulgence, the market is supplied with two important articles of provision, by the instrumentality of a mer- chandise, which has no other apparent use than the gratification of a vitiated palate.

But it may come to pass, that the husbandman, landowner, or whoever he be that is entitled to the produce of the soil, will no longer exchange it for what the manufacturer has to offer. He is already supplied to the extent of his desires. For instance, he wants no more cloth ; he will no longer, therefore, give the weaver corn, in return for the produce of his looms ; but he would readily give it for tea, or for wine. When the weaver finds this to be the case, he has nothing to do but to send hi? cloth abroad, in exchange for tea or for wine, which be may barter for that provision which the offer of his cloth will no longer procure. The circulation is ^hus revived ; and the benefit of the discovery is, that, whereas the number of weavers, who could find subsistence from their employment, was before limit- ed by the consumption of cloth in the country, that number is now augmented in proportion to the demand for tea and for wine. This is the principle of foreign commerce. In the magnitude and complexity of the machine, the principle of motion is some-

AND COMMERCE. 431

times lost or unobserved ; but it is always simple and the same, to whatever extent it may be diversified and enlarged in its op- eration.

The effect of trade upon agriculture, the process of which we have been endeavouriug (o describe, is visible in the neigbour- hood of trading towns, and in those districts which carry on a communication with the markets of trading towns. The hus- bandmen are busy and skilful, tlje peasantry laborious, the lands are managed to the best advantage, and double the quantity of corn or herbage (articles which are ultimately converted into human provision) raised from it, of what the same soil yields in remoter and more neglected parts of the country. Wherever a thriving manufactory finds means to establish itself, a new vege- tation springs up around it. I believe it is true, that agriculture never arrives at any considerable, much less at its highest de- gree of perfection, where it is not connected with trade ; that is, where the demand for the produce is not increased by the con- •■umption of trading cities.

Let it be remembered, then, that agriculture is the immediate source of human provision ; that trade conduces to the produc- tion of provision only as it promotes agriculture ; that the whole system of commerce, vast and various as it is, bath no other public importance than its subserviency to this end.

We return to the proposition we laid down, that " employ- " ment universally promotes population." From this proposi- tion it follows, that the comparative utility of different branches of national commerce is measured by the number which each branch employs. Upon which principle a scale may easily be constructed, which shall assign to the several kinds and divisions of foreign trade their respective degrees of public importance. In this scale, the Jirst place belongs to the exchange of wrought goods for raw materials, as, of broad cloths for raw silk ; cutle- ry for wool ; clocks or watches for iron, flax, or furs ; because this traffic provides a market for the labour that has already been expended; at the same time that it supplies materials for 56

j-j^ OF AGRICULTURE,

new indubUy. Topulalion always flourishes where thii species uf commcrte ublaiiis lo any considerable degree. It is the cause oF eniploymen't, or the certain indication. As it takes off the manufactures of the couiitry, it promotes employment ; as it brings in raw materials, it supposes the existence of manufacto- ries in the country, and a demand for the article when manufac- tured.— The second place is due to that commerce, which bar- ters one species of wrought goods for- another, as stuffs for cali- coes, fustians for cambrics, leather for paper, or wrought goods for articles which require no further preparation, as fo» wine, oil, tea, sugar, &:c. This also dssists employment; because when the country is stocked with one kind of manufacture, it renews the demand by converting it into another : but it is infe- rior to the former, as it promotes this end by one side only of the bargain, — by what it carries out. — The last, the lowest, and the most disadvantageous species of commerce, is the exporta- tion of raw materials in return for wrought goods : as when wool sent abroad to purchase velvets ; hides or peltry, to procure shoes, hats, or linen cloth. This trade is unfavourable to popu- lation, because it leaves no room or demand for employment,, either in what it takes out of the country, or in what it brings into it. Its operation on both sides is noxious. By its exports, ' it diminishes the very subject upon which the industry of the inhabitants ought to be exercised ; by its imports, it lessens the encouragement of that industry, in the same proportion that it supplies the consumption of the country with the produce of foreign labour. Of different branches of manufactiire, those are, in tlieir nature, the most beneficial, in which the price of the wrought article exceeds in the highest proportion that of the raw material : for this excess measures the quantity of employment, or, in other words, the number of manufactures which each branch sustains. The produce of the ground is never the most advan- tageous a-rticle of foreign commerce. Under a perfect state of ])ubjic economy, the soil of the country should be applied sole- ly to the raising of provision for the inhabitants, and its trade be

AND COMMERCE. 433

^applied "by Iheir industry. A nation will never reach its proper ^o^tent of population, so long as its principal commerce consists in the exportation of corn or cattle, or even of wine, oil, tobac- co, madder, indigo, timber ; because these last articles take up that surface which ought to be covered with the materials of human subsistence.

It must be here however noticed, that we have all along con- sidered the inhabitants of a country as maintained by the pro- duce of the country ; and that what we have said is applicable with strictness to this supposition alone. The reasoning, nev- ertheless, may easily be adapted to a different case ; for when provision is not produced, but imported, \\'ha.t has been affirmed concerning provision, will be, in a great measure, true of that article, whether it be money, produce, or labour, which is ex- changed for provision. Thus, when the Dutch raise madder, and exchange it for corn ; or when the people of America plant tobacco, and send it to Europe for cloth ; the cultivation of madder and tobacco becomes as necessary to the subsistence of the inhabitants, and by consequence will affect the state of pop- ulation in these countries as sensibly as the actual production of food, or the manufactory of raiment. In like manner, when the same inhabitants of Holland earn money by the carriage of the produce of one country to another, and with that money pur- chase the provision from abroad which their own land is not ex- tensive enough to supply, the increase or decline of this trade will influence the numbers of the people no less than similar changes would do in the cultivation of the soil.

The few principles already established will enable us to de- scribe the effects upon population which may be expected from the following important articles of national conduct and economy.

I. Emigration. — Emigration may be either the overflowiftg of a country, or the desertion. As the increase of the species is indefinite ; and the number of inhabitants, which any given tract or surface can support, finite ; it is evident that great numbers may be constantly leaving a country, and yet the country remain constantly full. Or whatever be the cause which invincibly

4r>4 Of AGRICULTURE,

limits the population of a country, when the number of the" peo- ple has arrived ;it that limit, the progregs of generation, beside continuing the succession, will supply multitudes for foreign em- igration. In these two cases, emigration neither indicates any political decay, nor in truth diminishes the number of people : nor ought to be prohibiled or discouraged. But emigrants may relinquish their country from a sense of insecurity, oppression, annoyance, and inconveniency. Neither, again, here is it emi- gration wliich wastes the people, but the evils that occasion it. Jt would be in vain, if it were practicable, to confine the inhab- itants at home ; for the same causes which drive them out of the country, would prevent their multiplication if they remained in it. Lastly, men may be tempted to charige their situation by the allurement of a better climate, of a more refined or luxuri- ous manner of livina; ; by the prospect of wealth ; or sometimes by the mere nominal advantage of higher wages and prices. This class of emigrants, with whom alone the laws can interfere with effect, will never, I think, be numerous. With the generality of a people, the attachment of mankind to their homes and coun- try, the irksomeness of seeking new habitations, and <>f living amongst strangers, will outweigh, so long as men possess the ne- cessaries of life in safety, or at least so long as they can obtain a provision tor that mode of subsistence which the class of citi- zens to which they belong are accustomed to enjoy, all the in- ducements that the advantages of a foreign land can offer. There appear, therefore, to be fk^w cases in which emigraiion can be prohibited with advantage to the state ; it appears also, that em- igration is an equivocal symptom, which will probably accom- pany the decline of the political body, but which may likewise attend a condition of perfect health and vigour.

II. CoLONIZATIO^. — The only view under which our subject will permit us to consider colonization, is in its tendency to aug- ment the population of the parent state. Suppose a fertile, but empty island, to lie within the reach of a country in which arts and DJanufactures are already established ; suppose a colony sent

AND COMMERCE. 435

out from such a coutitiy, to take possession of the island, and to live there under the protection and authority of their native go- vernment ; the new settlers will naturally convert their labour to the cuhivation of the vacant soil, and with the produce of that soil will draw a supply of manufactures from their countrymen at home. Whilst the inhabitants continue few, the lands cheap and fresh, the colonists will find it easier and more profita'We to raise corn, or rear cattle, and with corn and cattle to jiurchase woolen cloth, for instance, or linen, than to spin or weave these articles for themselves. The mother country, meanwhile, de- rives from this connexion an increase both of provision and em- ployment. It promotes at once the two great requisites upon i,vhich the facility of subsistence, and by consequence the state of population depends, — production and distribntion ; and this iu a manner the most direct and beneficial. No situation can be imagined more favourable to population, than that of a country which works up goods for others, whilst these others are cultiva- ting new tracts of land for them : for as, in a genial climate, and from a fresh soil, the labour of one man will raise provision enough for ten, it is manifest, that where all are employed in agriculture, much the greater part of the produce will be spared from the consumption ; and that three out of four, at least, of those who are maintained by it, will reside in the country which receives the redundancy. When the new country does not re- mit frnvision to the old one, the advantage is less ; but still the exportation of wrought goods, by whatever return they are paid for, advances population in that secondary way, in Avhicl* those trades promote it that are not employed in the production of provision. Whatever prejudice, therefore, some late events ; -vj have excited against schemes of colonization, the system itself is [ founded in apparent national utilitj' ; and what is more, upon principles fa\'ourabIe to the common interest of human nature ; for, it does not appear by what other method newly discovered and unfrequented countries can be peopled, or during the infan- cy of their establishment be yirotecfed or sup-pli^rl. The en'or

436 OF AGRICULTURE,

wliicli wc of this iintion at present lament, seeins to have cousisl- nd not so miicli in the original formation of colonies, a? in the sub- sequent management ; in imposing restrictions too rigorous, or in continuing them too long ; in not perceiving the point of time wl)cn the irresistable order and progress of human affairs deman- ded a cliange of laws and policy.

III. MoxKY. — Where money abounds, the people are general- ly numerous : yet gold and silver neither feed nor clothe man- kind ; nor are they in all countries converted into provision, by purchasing the necessaries of life at foreign markets ; nor do they, in any country', compose those articles of personal or do- mestic ornament, which certain orders of the community have learnt to regard as noi;essaries of life, and without the means of procuring which thoy will not enter into family establishments ; — at least, this property of the precious metals obtains in a ve- ry small degree. The effect of money upon the number of the people, though visible to observation, is not explained without some dilBculty. To understand this connexion properly, we must return to the proposifion with which Ave concluded our rea- soning upon the subject, " that poiniialion is chiefly promoted by "employment." Now of employment, moiie}' is partly the in- dication, and partly the cau«e. The only way in which money regularly and spontaneously Jlorvs into a country, is in return for the goods that are sent out of it, or the work that is perform- ed by it ; and the only way in which money is retained in a country is, by the country supplying, in a great measure, its own consumption of manufactures.^ Consequently, (he quantity of money found in a country, denotes the amount of labour and em- ployment ; but still employment, not money, is the cause of pop- ulation ; the accumul.ation of money being merely a collateral pffcf t of the same cause, or a circumstance which accompanies the existence, and measures the operation of that cause. And this is true of money only whilst it is acquired by the' industry of the inhabitants. The treasures which belong to a country by the possession of mines, or by the exaction of tribute from for-

AND COMMERCE. 437

eign dependencies, afford no conclusion concerning the state of jiopulation. The inllux from these sources may be immense, and yet the country remain poor and ill peopled ; of which we see an egregious example in the condition of Spain, since the acquisition of its South American dominions.

But, secondly, money may become also a real and operative muse of population, by acting as a stimulus to industry, and by facilitating the means of subsistence. The ease of subsistence, and the encouragement of industry depend neither upon the price of labour, nor upon the price of provision, but upon the propor- tion which the one bears to the other. Now tlie influx of money into a country naturally tends to advance this proportion ; that is, every fresh accession of money raises the price of labour be- fore it raises the price of provision. When money is brought from abroad, the persons, be they who they will, into whose hands it first arrives, do not buy up provision with it, but apply it to the purchase and payment of labour. If the state receives it, the state dispenses what it receives, amongst soldiers, sailors, artilicers, engineers, shipwrights, workmen ; — if private persons bring home treasures of gold at)d silver, they usually expend them in the building of houses, the improvement of estates, the purchase of furniture, dress, equipage, in articles of luxury or splendour ; — if the merchant be enriched by returns of his for- eign commerce, he applies his increased capital to the enlarge- ment of his business at home. The money ere long comes to market for provision : But it comes thither through the hands ot the manufacturer, the artist, the husbandman, and labourer. It? eifect, therefore, upon the price of art and labour, will precede its effects upoo the price of provision : and, during the interval between one efiect and the other, the means of subsistence will be multiplied and facilitated, as well as industry be excited by new rewards. When the great plenty of money in circulatioa has produced an advance in the price of provision, correspond- ing to the advanced price of labour, its efi'cct ceases. The la- bourer no longer gains any thing by the increase of his wages.

jju OF .\(;ricui/iurj-:,

it is not, llicrel'oic, the quantity ors|,-ccie collected into a couii- Iry, but the cuntinual increase of that quantity, from which the advantage arises to em|)loyment and population. It is only the accession of money wliich [iroduces the effect, and it is only by money constantly flowing into a country that the effect can be constant. Now, whatever consequence arises to the country from the influx of money, the contrary may be expected to fol- low from the diminution of its quantity ; and accordingly we find, that whatever cause drains off the specie of a-country, faster than the streams which feed it can supply, not only impoverish- es the country, but depopulates it. The knowledge and expe- rience of this effect has given occasion to a phrase which occurs in almost every discourse upon commerce or politics. The bal- ance of trade with any foreign nation is said to be against or in favour of a country, simply as it tends to carry money out, or to bring it in : that is, according as the price of the imports exceed? or falls short of the price of the exports. So invariably is the increase or diminution of the specie of a country regarded as a test of the public advantage or detriment, which arises from any branch of its commerce.

IV. Taxatiox. — As taxes take nothing out of a country ; as they do not diminish the public Block, only vary the distribution of it, they are not necessarily prejudicial to population. If the state exact money from certain members of the community, she dispenses it also amongst other members of the same communi- ty. They who contribute to the revenue, and they who are sup- ported or benefited by the expenses of government, are to be placed one against the other ; and whilst what the subsistence of one pari is profited by receiving, compensates for what that of the other suflers by paying, the common fund of the society is not lessened. This is true ; but it must be observed, that al- though the sum distributed by the state be always eqtcal to the sum collected from the people, yet the gain and loss to the means of subsistence may be very nnequal ; and the balance will re- main on the wrong oi the right side of the account, according as

AND Commerce. 439

the money passes by taxation from the industrious to the idle, from the many to the few, from those who want to those who abound, or in a contrary direction. For instance, a tax upoa coaches, to be laid out in the repair of roads, would probably improve the population of a neighborhood ; a tax upon cottages, to be ultimately expended in the purchase and support of coach- es, would certainly diminish it. In like manner, a tax upon wine or tea, distributed in bounties to fisherman or husbandmen, would augment the provision of a country ; a tax upon fisheries and husbandry, however indirect or concealed, to be converted, when raised, to the procuring of wine or tea for the idle and op- ulent, would naturally impair the public stock. The effect, therefore, of taxes upon the means of subsistence depends not so much upon the amount of the sum levied, as upon the object of the tax and the application. Taxes likewise may be so ad- justed as to conduce to the restraint of luxury, and the correc- tion of vice ; to the encouragement of industry, trade, agricul- ture, and marriage. Taxes thus contrived, become rewards and penalties ; not only sources of revenue, but instruments of po- lice. Vices, indeed, themselves cannot be taxed, without hold- ing forth such a conditional toleration of them as to destroy men's perception of their guilt ; a tax comes to be considered as a commutation ; the materials, however, and incentives of vice may. Although, for instance, drunkenness would be, on this account, an unfit object of taxation, yet public houses and spirituous liquors are very properly subjected to heavy im- posts.

Nevertheless, although it may be true that taxes cannot be pronounced to be detrimental to population, by any absolute ne- cessity in their nature ; and though under some modifications, and when urged only to a certain extent, they may even operate in favour of it ; yet it will be found, in a great plurality of in- stances, that their tendency is noxious. Let it be supposed that nine families inhabit a neighbourhood, each possessing barely the means of subsistence, or of that mode of subsistence which cus- 57

.J40 or ACRICULTL'RE,

torn liath cstabliilietl amongst them : let a tenth fainilj Ijc 'juar- (ered upon these, to be supported by a tax raised from the tune ; or rather, let one of the nine have liis income augmented hy a similar deduction from the incomes of the rest ; in either of these cases it is evident that the whole district would be broken up : for, as the entire income of each is supposed to be barely sufficient for the establishment which it maintaias, a deduction of any part destroys that establishment. Now, it is no answer to this objection, it is no apology for the.grievance, to say, that nothing is taken out of the neighborhood ; that the stock is nbt diminished : the mischief is done by deranging the distribution. Nor, again, is the luxury of one family, or even the maintenance of an additional family, a recompense to the country for the ru- in of nine others. Nor, lastly, will it alter the effect, though it may conceal the cause, that the contribution, instead of being levied directly upon each day's wages, is mixed up in the price of some article of constant use and consumption, as in a tax up- on candlee, malt, leather, or fuel. This example, illustrates the tendency of taxes to obstruct subsistence ; and the minutest degree of this obstruction will be felt in the formation of fami- lies. The example, indeed, forms an extreme case ; the evil is magnified, in order to render its operation distinct and visible. In real life, families may not be broken up, or forced from their hnbitotion, houses be quitted, or countries suddenly deserted, in coiisccpience of any new imposition whatever ; but marriages will become gradually less frequent.

It seems necessary, however, to distinguish between the ope- ration of a new tax, and the effect of taxes which have been long establishe<l. In the course of circulation, the money may flow back to the hands from which it was taken. The proportion between the supply and the expense of subsistence, which had been disturbed by the tax, may at length recover itself again. In the instance just now staled, the addition of a tenth family to the neighbourhood, or the enlarged expenses of one of the nine, m.iy in some shape or other, so advance the profits, or increase the

AND COMMERCE. 441

*ifiploynient of the rest, as to make full restitution for the share of their property of which it deprives them ; or, what is more likely to happen, a reduction liiay take place in their mode of living, suited to the abridgement of their incomes. Yet still the ultimate and permanent effect of taxation, though distinguisha- ble from the impression of a new tax, is generally adverse to population. The proportion above spoken of, can only be re- stored by one side or other of the following alternative : By the people either contracting their wants, which at the same time diminishes consumption and employment ; or by raising the price of labour, which necessarily adding to the price of the productions and manufactures of the coiAitry, checks their sale at foreign markets. A nation which is burthened with taxes, must always be undersold by a nation which is free from them, unless the difference be made up by some singular advantage of^ Climate, soil, skill, or industry. This quality belongs to all taxes which affect the mass of the community, even when im- ]!osed upon the properest objects, and applied to the fairest pur- poses. But abuses are inseparable from the disposal of public money. As government is usually administered, the produce of public taxes is expended upon a train of gentry, in the main- taining of pomp, or in the purchase of influence. The conver- sion of property which taxes effectuate, when they are employ- ed in this manner, is at'ended with obvious evils. It takes from the industrious, to give to the idle ; it increases the number of the latter ; it tends to accumulation ; it sacrifices the convenien- cy of many to the luxury of a iew ; it makes no return to the people, from whom the tax is drawn, that is satisfactory or in- telligible ; it encourages no activity which is useful cr productive. The sum to be raised being settled, a wise statesman will contrive his taxes principally with a view to their effect upon population ; that is, he will so adjust them as to give the least possible obstruction to those means of subsistence by which the mass of the community are maintained. We are accustomed to an opinion, that a tax, to be just, ought to be accurately propor-

442 Of AGRICULTURE,

tioned to the circumstances of the persons who pay it. But upon what, it mij^it be asked, is this opinion founded ; unless it could be shown that such a proportion interferes the least with the gener- al conveniency of subsistence ? Whereas I should rather believe, that a tax, constructed with a view to that conveniency, ought to raise upon the different classes of the community, in a much high- er ratio than the simple proportion of their incomes. The point to be regarded, is not what men have, but what they can spare ; and it is evident that a man who possesses a thousand pounds a year, can more easily give a hundred, than a man with a hundred pounds a year can part with ten ; that is, those habits of life which are reasonable ^d innocent, and upon the ability to con- tinue which the formation of families depends, will be much less affected by the one deduction than the other : It is still more ev- ident, that a man of a hundred pounds a year would not be so much distressed in his subsistence by a demand from him of ten pounds, as a man of ten pounds a year would be by the loss of one : to which we must add, that the population of every coun- try being replenished by the marriages of the lowest ranks of society, their accommodation and relief become of more impor- tance to the state, than the conveniency of any higher, but less numerous order of its citizens. But whatever be the proportion which public expediency directs, whether the simple, the dur plicate, or any higher or intermediate proportion of men's inr comes, it can never be attained by any single tax ; as no single object of taxation can be found, which measures the ability of the subject with sufficient generality and exactness. It is only by a system and variety of taxes mutually balancing and equal- izing one another, that a due proportion can be preserved. For instance, if a tax upon lands press with greater hardship upon those who live in the country, it may be properly counterpoised 1))' a tax upon the rent of houses, which will affect principally the inhabitants of large towns. Distinctions may also be fram- ed in some taxes, which shall allow abatements or exemptions *o married persons ; to the parents of a certain number of legiti-

AND COMMERCE. 443

mate children ; to improvers of the soil ; to particular modes of cultivation, as to tillage in preference to pasturage ; and in gen- eral, to that industry which is immediately productive, in prefer- ence to that which is only instrumental ; but above all, which may leave the heaviest part of the burthen upon the methods, whatever they be, of acquiring without industry, or even of subsisting in idleness.

V. Exportation of bread-corn. — Nothing seems to have a more positive tendency to reduce the number of the people, than the sending abroad part of the provision by which they are maintained ; yet this has been the policy of legislators very stu- dious of the improvement of their country. In order to recon- cile ourselves to a practice which appears to militate with the ehief interest, that is, with the population of the country that adopts it, we must be reminded of a maxim which belongs to the productions both of nature and art, " that it is impossible to "have enough without a superfluity." The point of sufficiency cannot, in any case, be so exactly hit upon, as to have nothing to spare, yet never to want. This is peculiarly true of bread- corn, of which the annual increase is extremely variable. As it is necessary that the crop be adequate to the consumption in a year of scarcity, it must of consequence, greatly exceed it in a year of plenty. A redundancy therefore will occasionally arise from the very care that is taken to secure the people against the danger of want ; and it is manifest, that the exportation of this redundancy subtracts nothing from the number that can regular- ly be maintained by the produce of the soil. Moreover, as the exportation of corn, under these circumstances, is attended with no direct injury to population, so the benefits which indirectly arise to population from foreign commerce, belong to this in common with other species of trade ; together with the peculiar advantage of presenting a constant incitement to the skill and industry of the husbandman, by the promise of a certain sale and an adequate price, under every contingency of season and produce. There is another situation, in which corn may not

4 11 OF AGRICULTURE,

ctily be oxpoilei!, but in which the people can thrive by iiuolli- rr means ; thnt is of a nfewly settled country with a fertile soil. 'I'he exportation of a large proportion uf the corn which a coun- try produces, prove* it is true, that the inliabilants have not yet attained to the number which the country is capable of maintain- ing; : hut it docs not prove but that they may be hastening to this limit with the utmost practicable celerity, whicli is the per- fection to be sought for in a young establishment. In all cases except these two, .ind in the former of them to any greater de- gree than what is necessary to take off occasional redundancies, the exportation of corn is cither itself noxious to population, or argues a defect of po|)ulation arising from some other cause.

VI. Abridgment of labovr.^ — It has long been made a <pjestion, whether those mechanical contrivances which abridge labour, by performing the same work by fewer hands, be detri- mental or not to the population of a country ? From what has been delivered in preceding parts of the present chapter, it will be evident that this question is equivalent to another,— -whether such contrivances diminish or not the quantity of employment ? Their first and most obvious effect undoubtedly is this ; because, if one man be made to do what three men did before, two are immediately discharged; but if by some more general and re- moter consequence, they increase the demand for work, or, what is the same thing, prevent the diminution of that demand, in a greater proportion than they contract the number of hands by which it is performed, the quantity of employment, upon the Mhole, will gain an addition. Upon which principle it may be observed, firstly, that whenever a mechanical invention succeeds in one place, it is necessary that it be imitated in every other where the same manufacture is carried on : for it is manifest that he who has the benefit of a conciser operation, will soon outvie and undersell a competitor who continues to use a more circui- tous labour. It is also true, in the second place, that whoever firat di.scover or adopt a mechanical improvement, will, for some time, draw to themselves an increase of employment ; and that

AND COMMERCE. 415

this preference may continue even after the improvement has become general : for, in every kind of trade, it is not only a great but permanent advantage, to have once pre-occupied the public reputation. Thirdly, after every superiority which might be derived from the possession of a secret has ceased, it may be well questioned whether even then any loss can accrue to employment. The same money will be spared to the same article still. Wherefore, in proportion as the article can be af- forded at a lower price, by reason of an easier or shorter process in the manufacture, it will either grow into more general use, or an improvement will take place in the quality and fabric, which will demand a proportionable addition of hands. The number of persons employed in the manufactory of stockings has not, 1 apprehend, decreased since the invention of stocking-mills. The amount of what is expended upon the article, after subtracting from it the price of the raw material, and consequently what is paid for work in this branch of our manutactories, is not less than it was before. Goods of a finer texture are worn in the place of coarser. This is the change which the invention has produced, and which compensates to the manufactory for every other iiicon- veniency. Add to which, that in the above, and in almost ev- ery instance, an improvement which conduces to the recom- mendation of a manufactory, either by the cheapness or the qual- ity of the goods, draws up. after it many dependent employments, in which no abbreviation has taken place.

From the reasoning that has been pursued, and the various considerations suggested in this chapter, a judgment may, in some sort, be formed, how far regulations of law are in their na- ture capable of contributing to the support and advancement of population. I say hozv far ; for, as in many subjects, so espe- cially in those which relate to commerce, to plenty, to riches, and to the number of the people, more is wont to be expected from laws, than laws can do. Laws can only imperfectly restrain that dissoluteness of manners, which, by diminishing the frequen- e-.y of marriages, impairs the very source of population. Laws

\

416 OK AGRICULTURE,

cannot regulate the wants of mankind, their mode of living, or their desire of those superfluities which fashion, more irresistible than laws, has once introduced into general usage ; or, in other words, has erected into necessaries of life. Laws cannot induce men to enter into marriages, when the expenses of a family must deprive them of that system of accommodation to which they have habituated their expectations. Laws, by their protection, by assuring to the labourer the fruit and profit of his labour, may help to make a people industrious ; but, without industry, the laws cannot provide either subsistence or employment ; laws cannot make corn grow v.ithout toil and care, or trade flourish without art and dilligence. In spite of all laws, the expert, la- borious, honest workmen will be employed, in preference to the lazy, the unskilful, the fraudulent, and evasive ; and this is not more true of two inhabitants of the same village, than it is of the people of two different countries, which communicate either with each other, or with the rest of the world. The natural basis of trade is rivalship of quality and price ; or, which is the same thing, of skill and industry. Every attempt to force trade by operation of law, that is, by compelling persons to buy goods at one market, which they can obtain cheaper and better from an- other, is sure to be either eluded by the quick-sightedness and incessant activity of private interest, or to be frustrated by retal- iation. One half of the commercial laws of many states are cal- culated merely to counteract the restrictions which have been imposed by other states. Perhaps the only way in which the interposition of law is salutary in trade, is in the prevention of frauds.

Next to the indispensable requisites of internal peace and se- curity, the chief advantage which can be derived to population from the interference of law, appears to me to consist in the en- couragement o[ agriculture. This, at least is the direct way of increasing the number of the people ; every other mode being efTtctual only by its influence upon this. Now the principal ex- pedient by which such a purpose can be promoted, is, to adjust

AND COMMERCE. 447

tlie laws of properly, as nearly as possible, to the two following rules : first. " To give to the occupier all the power over the " soil which is necessary for its perfect cultivation ;" — secondly, " To assign the whole profit of every improvement to the persons " by whose activity it is carried on." What we call property in land, as hath been observed above, is power over it. Now it is indifferent to the public in whose hands this power resides, if it be rightly used ; it matters not to whom the land belongs, if it be well cultivated. When we lament that great estates are often united in the same hand, or complain that one man possesses what would be sufficient for a thousand, we suffer ourselves to be misled by words. The owner of ten thousand pounds a year, consumes little more of the produce of the soil than the owner of ten pounds a year. If the cultivation be equal, the estate, in the hands of one great lord, affords subsistence and employment to the same number of persons as it would do if it were divided amongst a hundred proprietors. In like manner we ought to judge of the effect upon the public interest, which may arise from lands being holden by the king, or by the subject ; by private persons, or by corporations ; by laymen, or ecclesiastics ; in fee, or for life ; by virtue of office, or in right of inheritance. I do not mean that these varieties make no difference, but I mean that all the difference they do make respects the cultivation of the lands which are so holden.

There exists in this country conditions of tenure which con- demn the land itself to perpetual sterility. Of this kind is the right of common, which precludes each proprietor from the im- provement, or even the convenient occupation of his estate, without (what seldom can be obtained) the consent of many oth- ers. This tenure is also usually embarrassed by the interference of manorial claims, under which it often happens that the surface belongs to one owner, and the soil to another ; so that neither owner can stir a clod without the concurrence of his partner in the property. In many manors, the tenant is restrained from granting leases beyond a short term of years ; which le.nders eV'

448 OF AGRICULTURE, AND COMMERCE.

cry plan of solid and permanent improvement impracliGable.. In these cases, the owner wants, what the first rule of rational pol- icy requires, " sufficient power over the soil for its perfect cultiva- " tion." This power ought to be extended to him by some easy and general law of enfranchisement, partition, and enclosure ; which, though compulsory upon the lord, or the rest of the ten- ants, whilst it has in view the melioration of the soil, and tenders an equitable compensation for every right that it takes away, is neither more arbitrary, nor more dangerous to the stability of property, than that which is done in the construction of roads, bridges, embankments, navigable canals, and indeed in almost every public work, in which private owners of land are obliged to accept that price for their property which an indifferent jury may award. It may here, however, be proper to observe, that although the enclosure of wastes and pastures be generally bene- ficial to population, yet the enclosure of lands in tillage, in order to convert them into pastures, is as generally hurtful.

But, secondly, agriculture is discouraged by every constitu- tion of landed property which lets in those, who have no concern in the improvement, to a participation of the profit. This ob- jection is applicable to all such customs of manors as subject the proprietor, upon the death of the lord or tenant, or the alienation of the estate, to a fine apportioned to the improved value of the land. But of all institutions which are in this way adverse to cultivation and improvement, none is so noxious as that of tithes. A claimant here enters into the produce, who contributed no as- sistance whatever to the production. When years, perhaps, of care and toil have matured an improvement ; when the husband- man sees new crops ripening to his skill and industry ; the mo- ment he is ready to put his sickle to the grain, he finds himself compelled to divide his harvest with a stranger. Tithes are a tax not only upon industry, but upon that industry which feeds mankind, upon that species of exertion which it is the aim (*f all wise laws to cherish and promote; and to uphold and excite which, composes, as we have !=een, the main benefit tliat the community

MILITARY ESTABLISHMENTS. 44&

Teceives from the whole system of trade, and the success of com- merce. And, together with the more general inconveniency that attends the exaction of tithes, there is this additional evil, in the mode at least according to which they are collected at present, that they operate as a bounty upon pasturage. The burthen of the tax fallsAvith its chief, if not with its whole weight upon til- lage ; that is to say, upon that precise mode of cultivation which, as hath been shown above, it is the business of the state to re- lieve and remunerate in preference to every other. No measure of such extensive concern appears to me so practicable, nor any single alteration so beneficial, as the conversion of tithes into corn rents. This commutation, I am convinced, might be so ad- justed, as to secure to the tithe-holder a complete and perpetual equivalent for his interest, and to leave to industry its full ope- ration and entire reward.

CHAPTER XII.

OF WAR, AND OF MILITARY ESTABLISHMENTS.

BECAUSE the Christian scriptures describe wars as what they are, — as crimes or judgments, some have been led to believe that it is unlawful for a Christian to bear arms. But it should he remembered, that it may be necessary for individuals to unite their force, and for this end to resign themselves to the direction of a common will ; and yet it may be true that that will is often actuated by criminal motives, and often determined to destruc- tive purposes. Hence, although the origin of wars be ascribed, in Scripture, to the operation of lawless and malignant passions ;* and though war itself be enumerated among the sorest calamities with which a land can be visited, the profession of a soldier h

■* James, iv. 1 .

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no where forbidden or condemned. When the soldiers demanded of John tlie Baptist, And what shall we do ? he said unto tlicm, " Do violence to no man, neither accuse any falsely, and be con- " tent with your wages."! In which answer we do not find, that in order to prepare themselves for the reception of the kingdom of God, it was required of soldiers to relinquish their profession, but only that they should beware of the vices of which that pro- fession, it may be presumed, was justly accused. The precept, •* Be content with 3 our wages," supposed them to continue in their situation. It was of a Roman centurion that Christ pro- nounced that memorable eulogy, "I have not found so great " faith, no, not in Israel. "| The first Gentile convert§ who was received into the Christian church, and to whom the Gojpel was imparted by tbe immediate and especial direction of Heaven, held the same station ; and in the history of this transaction, we discover not the smallest intimation that Cornelius, upon becom- ing a Christian, quitted the service of the Roman legion ; that bis profession was objected to, or his continuance in it consider- ed as in any wise inconsistent with his new character.

In applying the principles of morality to the affairs of nations, the difficulty which meets us arises from hence, " that the par- " ticular consecjuence sninetimes appears to exceed the value of " the general rule." In this circumstance is founded the only distinction that exists between the case of independent stales, and of independent individuals. In the transactions of private persons, no advantage that results from the breach of a general law of justice, can compensate to the public for the violation of llie law ; in the concerns of empire, this may sometimes be doubted. Thus, that the faith of promises ought to be main- tained, as far as is lawful, and as far as was intended by the par- ties, whatever inconveniency cither of them may suffer by his fidelity, in the intercourse of private life, is seldom disputed ; because it is evident to almost every man who refiects upon tlu-

t Luke, iii. M. 1 Luke, vii. P. 5 Ao(s, x. 1.

MILITARY ESTABLISHMENTS. 451

subject, that the common happiness gains more by the preserva- tion of the rule, than it could do by the removal of the inconve- niency. But when the adherence to a public treaty would en- slave a whole people ; would block up seas, rivers, or harbours ; depopulate cities ; condemn fertile regions to eternal desolation ; cut off a country from its sources of provision, or deprive it of those commercial advantages to which its climate, produce, or situation naturally entitle it ; the magnitude of the particular evil induces us to call in question the obligation of the general rule. Moral Philosophy furnishes no precise solution to these doubts. She cannot pronounce that any rule of morality is so rigid as to bend to no exceptions : nor, on the other hand, can she comprise these exceptions within any previous description. She confesses that the obligation of every law depends upon its ultimate utility ; that this utility having a finite and determinate value, situations may be feigned, and consequently may possibly arise, in which the general tendency is outweighed by the enor- mity of the particular mischief : but she recalls, at the same time, to the consideration of the inquirer, the almost inestima- ble importance, as of other general rules of relative justice, so especially of national and personal fidelity ; the unseen, if not unbounded extent of the mischief which must follow from the want of it ; the danger of leaving it to the sufferer to decide up- on the comparison of particular and general consequences ; and the still greater danger of such decisions being drawn into future precedents. If treaties, for instance, be no longer binding than whilst they are convenient, or until the inconveniency ascend to a certain point, which point must be fixed by the judgment, or rather by the feelings of the complaining party ; or if such aa opinion, after being authorized by a few exami)les, come at length to prevail ; one and almost the only method of averting or closing the calamities of war, of either preventing or putting a stop to the destruction of mankind, is lost to the world forever. We do not say that no evil can exceed this, nor any possible advantage compensate it ;, hut we say, that a loss which affects

452 OF WAR, AND OF

all, will scarcely be made up to the common stock of human happiness by any benefit that can be procured to a single nation, which, however respectable when compared with any other sin- gle nation, bears an inconsiderable proportion to the whole. These, however, are the principles upon which the calculation is to be formed. It is enough, in this place, to remark the cause which produces the hesitation that we sometimes feel, in apply- ing rules of personal probity to the conduct of nations.

As between individuals it is found impossible to ascertain eve- ry duty by an immediate reference to public utility, not only because such reference is oftentime? too remote or obscure for the direction of private consciences, but because a multitude of cases arise, in which it is indifferent to the general interest by what rule men act, though it be absolutely necessary that they act by some constant and known rule or other ; and as for these reasons certain positive constitutions are wont to be established in every society, which, when established, become as obligato- ry as the original principles of natural justice themselves ; so, likewise, it is between independent communities. Together with those maxims of universal equity which are common to stales and to individuals, and by which the rights and conduct of the one, as well as of the other, ought to be adjusted, when they fall within the scope and application of such maxims ; there ex- ists also amongst sovereigns a system of artificial jurisprudence, under the name of the lam of nations. In this code are found Ikte rules which determine the right to vacant or newly discover- ered countries ; those which relate to the protection of fugitives, the privileges of ambassadors, the condition and duties of neu- trality, the immunities of neutral ships, ports, and coasts, the distance from shore to which these immunities extend, the dis- tinction between free and contraband goods, and a variety of sub- jects of the same kind. Concerning which examples, and in- deed the principal part of what is called tbe/MS gentium, it may be observed, that the rules derive their moral force (by which I mean the regard that ought to be paid to them by the conscien-

MILITARY ESTABLISHMENTS. 45S

ces of sovereigns,) not from their internal reasonableness or jus- tice, for many of them are perfectly arbitrary ; nor yet from the authority by which they were established, for the greater part have grown insensibly into usage, without any public compact, formal acknowledgment, or even known original ; but simply from the fact of their being established, and the general duty of conforming to established rules upon questions, and be- tween parties, where nothing but positive regulations can pre- vent disputes, and where disputes are followed by such destruc- tive consequences. The first of the instances which we have just now enumerated, may be selected for the illustration of this remark. The nations of Europe consider the sovereignty of newly discovered countries as belonging to the prince or state whose subject makes the discovery ; and in pursuance of this rule, it is usual for a navigator, who falls upon an unknown shore, to take possession of it, in the name of his sovereign at home, by erecting his standard, or displaying his flag upon a desert coast. Now, nothing can be more fanciful, or less substantiated hy any considerations of reason or justice, than the right which such dis- covery, or the transient occupation and idle ceremony that ac- company it, confer upon the country of the discoverer. Nor can any stipulation be produced, by which the rest of the world have bound themselves to submit to this pretension. Yet when we reflect that the claims to newly discovered countries can hard- ly be settled, between the different nations that frequent them, without some positive rule or other ; that such claims, if left un- settled, would prove sources of ruinous and fatal contentions ; that the rule already proposed, however arbitrary, possesses one principal quality of a rule, — determination and certainty ; above all, that it is acquiesced in, and that no one has power to substi- tute another, however he might contrive a better, in its place : when we reflect upon these properties of the rule, or rather upon these consequences of rejecting its authority, we are led to as- cribe to it the virtue and obligation of a precept of natural jus- tice, because we perceive in it that which is the foundation of

^54 OF WAR, ANJJ OK

juslke itself, — public importance and utility. And a piii;ce who should dispute this rule, for the want of regularity in its forma- tion, or of intelligible justice in its principle, and by such dis- putes should disturb the tranquillity of nations, and at the same time by the foundation of future disturbances, would be little less criminal than he who breaks the public peace by a violation of engagements to which he had himself consented, or by an at- tack upon those national rights which are founded immediately in the law of nature, and in the first perceptions of equity. The same thing may be repeated of the rules which the law of na- tions prescribes in the other instances that were mentioned, name- ly, that the obscurity of their origin, or the arbitrariness of their principle, subtracts nothing from the respect that is due to them, when once established.

War may be considered with a view to its cavses and to its con- duct.

The jnstifyiug csiuses oi war are, deliberate invasions of right, and the necessity of maintaining such a balance of power amongst neighbouring nations, as that no single state, or confederacy of states, be strong enough to overwhelm the rest. The objects of just war are, precaution, defence or reparation. In a larger sense, every just war is a defensive war, inasmuch as every just, war supposes an injury per[)etrated, attempted, or feared.

The insujjicient causes, or unjustifiable motives of war, are the family alliances, the personal friendslii[)s, or the personal quar- rels of princes ; the internal disi)utes which are carried on in other nations ; the justice of other wars, the extension of terri- tory, or of trade ; the misfortunes or accidental weakness of a neighbouring or rival nation.

There are two lessons of rational and sober policy, which, if it were possible to inculcate into the councils of princes, would exclude many of the motives of war, and allay that restless am- bition which is constantly stirring up one part of mankind against another. The first of these lessons admonishes princes to " place " their glory and their emulation, not in extent of territory, but

MILITARY ESTABLISHMENTS. 455

" in raising tlie greatest quantity of happiness out of a given " territory." The enlargement of territory by conquest is not only not a just object of war, but, in the greater part of the in- stances in which it is attempted, not even desirable. It is cer- tainly not desirable where it adds nothing to the numbers, the enjoyments, or the security of the conquerors. What commonly is gained to a nation, by the annexing of new dependencies, or the subjugation of other countries to its dominion, but a wider frontier to defend ; more interfering claims to vindicate ; more quarrels, more enemies, more rebellions to encounter ; a greater force to keep up by sea and land ; more services to provide for, and more establishments to pay ? And, in order to draw from these acquisitions something that may make up for the charge of keeping them, a revenue is to be extorted, or a monop- oly to be enforced and watched, at an expense which costs half their produce. Thus the provinces are oppressed, in order to pay for being ill governed ; and the original state is exhausted in maintaining a feeble authority over discontented subjects. No assignable portion of country is benefited by the change ; and if the sovereign appear to himself to be enriched or strengthen- ed, when every part of his dominion is made poorer and weaker than it was, it is probable that he is deceived by appearances. Or were it true that the grandeur of the prince is magnified by those exploits ; the glory which is purchased, and the ambition which is gratified, by the distress of one country without adding to the happiness of another, which at the same time enslaves the new and impoverishes the ancient part of the empire, by what- ever names it may be known or flattered, is an object of univer- sal execration ; and not more so to the vanquished, than it is of- tentimes to the very people whose armies or whose treasures have achieved the victory.

There are, indeed, two cases in which the extension of terri- tory may be of real advantage, and to both parties. The first is, where an empire thereby reaches to the natural boundaries which divide it from the rest of the world. Thus we account 69

400 OF WAR, AND OF

the British ChanneJ the natural boundary which separates ihc nations of England and France ; and if France possessed any countries on this, or England any cities or provinces on that side of the sea, the recovery of such towns and districts to what may be called their natural sovereign, though it might not be a just reason for commencing war, would be a proper use to make of victory. The other case is, where neighbouring states, being severally too small and weak to defend themselves against the dangers that surround them, can enly be safe by a strict and constant junction of their strength : here conquest will effect the purposes of confederation and alliance ; and the union which it produces is often more close and permanent than that which re- sults from voluntary association. Thus if the heptarchy had continued in England, the different kingdoms of it might have separately fallen a prey to foreign invasion ; and although the interest and danger of one part of the island was in truth com- mon to every other part, it might have been difficult to have cir- culated this persuasion amongst independent nations, or to have nnilcd them in any regular or steady opposition to their conti- nental enemies, had not the valour and fortune of an enterpris- ing prince incorporated the whole into a single monarchy. Here the conquered gain as much by the revolution as the con- querors. In like manner and for the same reason, when the two royal families of Spain were met together in one race of princes, and the several provinces of France had devolved into the pos- session of a single sovereign, it became unsafe for the inhabitants of Great Britain any longer to remain under separate govern- ments. The union of England and Scotland, which transformed two quarrelsome neighbours into one powerful empire, and which ■was first brought about by the course of succession, and after- wards completed by amicable convention, would have been a fortunate conclusion of hostilities, had it been efi'ected by the op- erations of war. These two cases being admitted, namely, the obtaining of natural boundaries, and barriers, and the including under the same government those who have a common daniier

MILITARY ESTABLISHMENTS. 451

mid a common enemy to guard against, I know not whether a third can be thought of, in which the extension of empire by con- quest is useful even to the conquerors.

The second rule of prudence which ought lo be recommended to those who conduct the affairs of nations, is, '• never to pursue " national honour as distinct from national interest." This rule acknowledges, that it is often necessary to assert the honour of a nation for the sake of its interest. The spirit and courage of a people are supported by flattering their pride. Concessions which betray too much of fear or weakness, though they relate to points of mere ceremony, invite demands and attacks of more serious importance. Our rule allows all this ; and directs only, that when points of honour become subjects of contention between sovereigns, or are likely to be made the occasions of war, they be estimated with a reference to utility, and not by tkeinselves. " The dignity of bis crown, the honour of his flag, the glory of " his arms," in the mouth of a prince, are stately and imposing terms ; but the ideas they inspire are insatiable. It may be al- v/ays glorious to conquer whatever be the justice of the war, or the price of the victory. The dignity of a sovereign may not permit him to recede from claims joI homage and respect, at whatever expense of national peace and happiness they are to be maintained, however unjust they may have been in their origin- al, or in their continuance however useless to the possessor, or mortifying and vexatious to other states. The pursuit of honour, when let loose from the admonitions of prudence, becomes in kings a wild and romantic passion : eager to engage, and gather- ing fury in its progress, it is checked by no difficulties, repelled by no dangers ; it forget<-j or despises those considerations of safety, ease, wealth, and plenty, which, in the eye of true pub- lic wisdom, compose the objects to which the renown of arms, the fame of victory, are only instrumental and subordinate. The pursuit of interest, on the other hand, is a sober principle ; com- putes costs and consequences ; is cautious of entering into war ; 5tops in time : when regulated by those universal maxims oi

458 OF WAR, AND OF

relative justice, which belong to the affairs of communities as well as of private persons, it is the right principle for nations to proceed by ; even when it trespasses upon these regulations, it is much less dangerous, because much more temperate than the otlirr.

n. Tlie conduct of war. — If the cause and end of war be Jus- tifiable, all the means that a])pear necessary to the end are justifia- ble also. This is the principle which defends those extremities to which the violence of war usually proceeds : for since war is n contest by force between parties who acknowledge no common superior, and since it includes not in its idea the supposition of any convention which should place limits to the operation of force, it has naturally no boundary but that in which force terminates, — the destruction of the life against which the force is directed. Let it be observed, however, that the licence of war authorizes no acts of hostilitj' but what are necessary or conducive to the end and object of the war. Gratuitous barbarities bon-ow no ex- cuse from this ])Iea : of which kind is every cruelty and every insult that serves only to exasperate the bufferings or to incense the hatred of an enemy, without weakening his strength, or in any manner tending to procure his submission ; such as the slaughter of captives, the subjecting them to indignities or tor- ture, the violation of women, the profanation of temples, the de- molition of public buildings, libraries, statues, and in general the destruction or defacing of works that conduce nothing to anno}-- ance or defence. These enormities are prohibited not only by the practice of civilized nations, but by the law of nature itself : as having no proper tendency to accelerate the termination, or accomplish the object of the war ; and as containing that which in peace and war is equally unjustifiable, — ultimate and gratui- tious mischief.

There are other restrictions imposed upon the conduct of war, not i)y the law of nature primarily, but by the laxa^s of n'ar first, and by the law of nature as seconding and ratifying the laws of war. The laws of war are part of the law of n?tionn ; and fmuHl-

MILITAP.Y ESTABLISHMENTS. 459

e:l, as to their aulLority, upon the same principle with the rest of that code, namely, upon the fact of their being established, no matter when or by whom ; upon the expectation of their l)eing mutually observed, in consequence of that establishment ; and upon the general utility which results from such observance. The binding force of these rules is the greater, because the re- gard that is paid to thcra must be universal or none. The breach of the rule can only be punished by the subversion of the rule itself: on which account the whole mischief that ensues from the loss of those salutary restrictions which such rules prescribe, is justly chargeable upon the first aggressor. To this consideration may be referred the duty of refraining in war from jioison and from assassination. If the law of nature simply be consulted, it may be difficult to distingm'sh between these and other meth- ods of destruction, which are practised without scruple by na- tions at war. If it be lawful to kill an enemy at all, it seems lawful to do so by one mode of deatli as well as by another ; by a dose of poison, as by the point of a sword ; by the hand of an assassin, as by the attack of an army : for if it be said that one species of assault leaves to an enemy the power of defending himself against it, and that the other does not ; it may be an- swered, that we possess at least the same right to cut off an en- emy's defence, that we have to seek his destruction. « In this manner might the question be debated, if there existed no rule or law of war upon the subject. But when we observe that such practises are at present excluded by the usage and opinions of civilized nations : that the first recourse to them would be fol- lowed by instant retaliation ; that the mutual licence whicli such attempts must introduce, would fill both sides v/ith the misery of continual dread and suspicion, without adding to (he strength or success of either ; that when the example came to be more generally imitated, which it soon would be, after the sentiment that condemns it had been once broken in upon, it would greatly aggravate the horrors and calamities of war, yet procure no su- periority to any of the nations engaged in it : when we vieu

4'6U OK WAR, AND OF

these effects, ive join in the public reprobation of such lalal es- pedieuts, as of the admission amongst mankind of new and enor- mous evils without necessity or advantage. The law of nature, we see at length, forl;ids these innovations, as so many trans- gressions of a beireficial general rule actually subsisting.

The licence of war then acknowledges two limitations : it au- thorizes no hostilities which have not an apparent tendency to •^flectuatc the object of the war ; it respects those positive laws which the custom of nations hath sanctified, and which, whilst they are mutually conformed to, mitigate the calamities of war, without weakening its operations, or diminishing the power or safety of belligerent states.

Long and various experience seems to have convinced the na- tions of Europe, that notfiing but a standing army can oppose a standing army, where the numbers on each side bear an}* mode- rat* proportion to one another. The first standing army that ap- ])eared in Europe after the fall of the Roman legion, was that which was erected in France by Charles V^II. about the middle of the fifteenth centurj' : and that the institution hath since be- come general, can only be attributed to the superiority aud suc- cess which are every where observed to attend it. The truth is, the closeness, regularity, and quickness of their movements ; the unreserved, instantaneous, and almost mechanical obedience to orders ; the sense of personal honour, and the familiarity with danger, which belong to a disciplined, veteran, and embodied soldiery, give such firmness and intrepidity to their approach, such weight and execution to their attack, as are not to be with- stood by loose ranks of occasional and newly levied troops, who are liable by their inexperience to disorder and confusion, and in whom fear is constantly augmented by novelty and surprise. It is possible that a militia, with a great excess of numbers, and ■a ready supply of recruits, may sustain a defensive or a flying war against regular troops ; it is also true, that any service which keeps soldiers for a while together, and inures them by little and Uttlr'lo the habit« of war and the dangers of action, transformc

iVTILITARY ESTABLISHMENTS. 4G1

them in effect into a standing army. But upon this plan it may "be necessary for almost a whole nation to go out to war to repel an invader ; beside that, a people so unprepared must always have the seat, and with it the miseries of war, at home, being utterly incapable of carrying their operations into a foreign country.

From the acknowledged superiority of standing armies, it fol- lows not only that it is unsafe for a nation to disband its regular troops, whilst neighbouring kingdoms retain theirs, but also that regular troops provide for the public service at the least possible expense. I suppose a certain quantity of military strength to be necessary, and I say, that a standing army costs the commu- nity less than any another establishment which presents to an enemy the same force. The constant drudgery of low employ- ments is not only incompatible with any great degree of perfec- tion or expertness in the profession of a soldier, but the profes- sion of a soldier almost always unfits men for the business of reg- ular occupations. Of three inhabitants of a village, it is better fhat one should addict himself entirely to arms, and the other two stay constantly at home to cultivate the ground, than that all the three should mix the avocations of a camp with the business ^ of husbandry. By the former arrangement, the country gains one complete soldier, and two industrious husbandmen : from the latter, it receives three raw militia- men, who are at the same time three idle and profligate peasants. It should be consider- ed also, that the emergencies of war wait not for seasons. Where there is no standii>g army ready for immediate service, it may be necessary to call the reaper from the fields in harvest, or the ploughman in seed-time ; and the provision of a whole year may perish by the interruption of one month's labour. A standing army, therefore, is not only a more effectual, but a cheaper method of providing for the public safety than any other, because it adds more than any other to the common strength, and takes less from that which composes the wealth of the nation,- — its stock of productive industry.

OF WAR, AA'D OF

riicrc is yel anollior distinction between standing ainiies ami iniliti.is, which deserves a more attentive consideration than any tliat has been mentioned. When the state relies for its defence u|)on a militia, it is necessary that arms be put it)to tlie hands of tlic people at large. The militia itself must be numerous, in proportion to the want or inferiority of its discipline, and the im- becilities or defects of its constitution. Moreover, as such a mi- litia must be supplied by rotation, allotment, or some mode of succession, whereby they who have served a certain lime are replaced by fresh draughts from the country, a much greater number Avill be instructed in the use of arms, and will have been occasionally embodied together, than are actually employed, or than are supposed to be wanted at the same time. Now, what effects upon the civil condition of the country may be looked for from this general diffusion of the military character, becomes an inquiry of great importance and delicacy. To me it appears^ doubtful, whether any government can be long secure, where the people are acquainted with the use of arms, and accustomed to resort to them. Every faction will find itself at the head of an army ; every disgust will excite commotion, and every commo- tion become a civil war. Nothing, perhaps, can govern a na- tion of armed citizens but that which governs an army — despot- ism. I do not mean, that a regular government would become despotic by training up its subjects to the knowledge and exer- cise of arms, but that it would ere long be forced to give way to despotism in some other shape ; and that the country would be liable to what is even worse than a settled and constitutional des- potism,— to perpetual rebellions, and to perpetual revolutions ; to short and violent usurpations ; to the successive tyranny of governors, rendered cruel and jealous by the danger and insta- bility of their situation.

The same purposes of strength and efficacy which make a blinding army necessary at all, make it necessary, in mixed go- vernments, that this army be submitted to the management and direction of the prince ; for, however well a popular council inay

MILITARY ESTABLISHMENTS. 463

be qualified for the offices of legislation, it is altogether unfit for the conduct of war : in which success usually depends upon vigour and enterprise ; upon secrecy, despatch, and unanimity ; upon a quick perception of opportunities, and the power of seiz- ing every opportunity immediately. It is likewise necessary that the obedience of an army be as prompt and active as possi- ble ; for which reason it ought to be made an obedience of will and emulation. Upon this consideration is founded the expedi- ency of leaving to the prince, not only the government and des- tination of the army, but the appointment and promotion of its officers : because a design is then alone likely to be executed with zeal and fidelity, when the person who issues the order, chooses the instruments, and rewai'ds the service. To which we may subjoin, that, in governments like ours, if the direction and officering of the army were placed in the hands of the democrat- ic part of the constitution, this power, added to what they al- ready possess, would so overbalance all that wbuld be left of re- gal prerogative, that little would remain of monarchy in the con- stitution, but the name and expense ; nor would they probably remain long.

Whilst we describe, however, the advantages of standing ar- mies, we must not conceal the danger. These properties of their constitution, — the soldiery being separated in a great de- gree from the rest of the community, their being closely linked amongst themselves by habits of society and of subordination, and the dependency of the whole chain upon the will and favour of the prince, — however essential they may be to the purposes for which armies are kept up, give them an aspect in no wise favourable to public liberty. The danger, however, is dimin- ished by maintaining upon all occasions, as much alliance of in- terest, and as much intercourse of sentiment, between the milita- ry part of the nation and the other orders of the people, as are consistent with the union and discipline of an army. For which purpose, the officers of the army, upon whose disposition towards the commonwealth a great deal may depend, should be takes

eo

462 OF WAR, &c.

from the principal families of the country, and, at the same time, also be encouraged to establish in it families of their own, as well as be admitted to seats in the senate, to hereditary distinc- tions, and to all the civil honours and privileges that are com- patible with their profession : which circumstance of connexion and situation will give them such a share in the general rights of the people, and so engage their inclinations on the side of public liberty, as to afford a reasonable security that they cannot be brought, by any promises of personal aggrandizement, to assist in the execution of measures which might enslave their posterity, tlieir kindred, and the country.

THE END.

E. p. WALTON, PRINTER, »IONTP£LIER, VT.

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