■••■•■■•,* n
A .V *-
/v. '5 '> ^
.U(
A/^A-^
>...>.;
^ ^ \ U, )i
^ 3
iiif^i |
•yvaaiH^ |
lis |
.JAINfl |
|
'i-UNlVERS/' |
A |
^ILIBRAI |
||
i(^ |
m 11 |
iM |
||
'■-^dii'mm'^' |
'</Aa3AiNn-3Wv |
1^ |
11 |
"HI w
,^\^EIJNIVER% vvlOSANCELfj>
C5
«,,.r* ^
^iiij^v-i>ur^' '-/^iadAiNiiJvvv
^OfCALIf^O^ ^OF-CAlll
;'wavaiiii-i^''
'i/Aavaa
iMJNIVERSy.
■'S-ANCElfx.
IIBRARY^
-^
I-JO^ %■
lIBRARYQr
M
-f'l!NIVER5:'> OSANC
/Or— ^
Q hb f ft f i
'lAINf
^ ^
^JiuJ/iioUl--'-
LJfO/?^ \WEUNIVERV^ o^lOSANGElfj>
"ns
v:iiiAiNlV3^'^
;ii)KA "^^ ''"'03 iw:
^OM/UihO,?^ ^Of-CALI
ULi
>
Sf %.
mm
3Vi S"i^
LIBRARY^/:
'%ojnv3jo'
•<
flQ
^WEUNIVEP.V/
|_o.
OSANt
s
1
OFCAIIFO/.'^
v^
"z
^OXWc
.aSANC
T O
<-> hi-
O eg
i I'"
f ^
s =
p)^
Jl"
iZi E f ft y 55
)d3AINI]mV
'au3MV j'jv ■ -'uu^ii v.rjvj
■-^j|jji'<v:sUi- « •■<Aj(:]jy\i:iiiinv ''<
to^
13
<'jadAinii-3\\^
Ji^V ;;U\
K
<^^UIBRA:
.K:10SAK(
^^.^-IIBRARY/)^^ ^^^l•LIBR,^
CAIIFO;?^.
5V
,vlOSANGFlfr5. ^^.of-CA'
1
\
M\VM-iX^>
jAiaiijt\>
■^
M s^i IS
^/JuJAlrtll-JV^-
•■(>A'::Lytiaiii\"
■iliiM
^MMJNIVERf//,. .^vlOS'MT/,'-
■LISRARYr
*'BRAf?Ya^ .^A
^/p^l
^
.^ ^lOSANCflfjv OFCAIIFO^ ^OfCAllFO%
in>)| =5S ! is
S Y S T E M
O F ^^
MORAL
PHILOSOPHY.
IN THREE BOOKS;
WRITTEN BY THE LATE
FRANCIS HUTCHESON, L.L.D.
PROFESSOR OF PHILOSOPHY
IN THE UNIVERSITY OF GLASGOW. PUBMSHED FROM THE ORIGINAL MANUSCRIPT,
BY HIS SON FRANCIS HUTGHESON, M. D.
To which is prefixed SOME ACCOUNT OF THE LIFE, WRITINGS, AND CHARACTER OF THE AUTHOR,
BY THE REVEREND WILLIAM LEECHMAN, D.D.
PROFESSOR OF DIVINITY IN THE SAME UNIVERSITY.
V O L U M E IL
CLASG6V.', PRINTED AND SOLD BY R. AND A. FOULIS PRINTERS TO THE UNIVBII«ITY,
LONDON,
SOLD BY A.MILLAR OVER-AGAINST KATHARINE-STREET IN THE STRANOj AND BY T. LONGMAN IN PATER-NOSTER ROW.
M.DCC.LV.
CONTENTS OF the SECOND VOLUME. /\^
\is'5
B O O K II. V, ^
Chap. 9. Concerning Contra(51:s or Covenants. Page i Chap. ID. The Obligations in the Ufe of Speech. 28
Chap. ii. Concerning Oaths and Vows. 44
Chap. 12. The Values of Goods in Commerce, and the Na- ture of Coin. 53 Chap. 13. The principal Contracts in a Social Life. 64 Chap. 14. Perfonal Rights arifing from fomc lawful A<rri- on of the Perfon obliged, or of him who has the Right. yy Chap. 15. The Rights arifing from Injuries and Damages, done by others: and the Abolition of Rights. 86 Chap. 16. Concerning the general Rights of Human So- ciety, or Mankind as a Syftem. 104 Chap. 17. The extraordinary Rights arifing from fome lin- gular NecefTity. 117 Chap. 18. How Controverfies fhould be decided in Natural Liberty. 141
BOOK III.
Of Civil Polity. '
Chap. i. Concerning the adventitious States or permanent
Relations: and firft, Marriage. 149
Chap. 2. The Rights and Duties of Parents and Children.
187 Chap. 3. The Duties and Rights of Mafters and Servants.
~ CONTENTS.
Chap. 4. The Motives to conftitute Civil Government. 212
Chap. 5. The natural Method of conftituting Civil Govern- ment, and the effential parts of it. 225
Chap. 6. The feveral Forms of Polity, with their principal Advantages and Difadvantages. 240
Chap. 7. The Rights of Governours, how far they ex- tend. 266
Chap. 8. The Ways in which Supreme Power is acquired; how far juft. 283
Chap. 9. Of the Nature of Civil Laws and their Execution.
310
Chap. 10. The Laws of Peace and War. 347
Chap. 1 1. The Duration of the Politick Union; and the
Conclufion. 372
A
SYSTEM
O F
MORAL PHILOSOPHY.
BOOK IL CHAP. IX.
Concern'wg Contracts or Covenants.
A Contract is " the confent of two or more in ^ co^^ran. " the fame defign, mutually expreffed with a " view to conftitute or abolifh fome right or " obligation." We have already feen the necefTity of frequent tranflations of property by confent of the pro- prietor, and of a conftant, focial intercourfe of offices among men in giving mutual affiftance. The law of nature requires and obliges us all to be ready volun- tarily to do all kind offices in our power,and every good man is thus difpofed; and yet exprefs contracts about them are neceflary among the beft of men.
For tho' men are obliged to focial offices, yet they ne nccejf,ty nf are not bound, except humanity to the indigent re- quires it, to give their goods or labours to others for nothing. Such obligation would have all the bad ef- fects of a community of goods. The wealthy need more frequently the labours of the indigent, and the indigent muft be fupported by the compenfations they get for them. There muft be mutual agreements a- bout thefe things.
Vol. II. A
■jhlizatlon.
2 Contracts ^//^CovENANTs.
Book II. Again fuppofe the very bell difpoficions in my neio-hbours toward me, and toward each other; yet I cannot take my meafures in dependance on their afFif- tance, without a previous contrail. I mufl: know their leifure hours, the fervices they can do me confiftent- ly with their other duties of hfe ; and they mufl knoNv how far I can fupply their wants, and afTiil them in their need, otherways they mufl concert their affairs with others who can anfwer their necefhties. The reafons therefore which fl^iew the necefllty of a focial life, fhew alfo the neceihty of contra6ls, and the obli- gation of faithfully obferving them.
The xrowuh of Some more immediate principles in our nature firfl fuggefl our obligation. Nature has given us the faga- city to contrive means by fpeech, or founds appointed to be the figns of thoughts, to communicate our fen- timents, defigns, and inclinations to others, and has made us prone to communicate them by a natural o- pennefs of mind, till fome experience of inconveni- ence from too much opennefs reflrain us ; we have al-- fo an immediate natural approbation of this difpofi- tion; and a yet higher approbation of a ftedfafl vera- city and candour in fpeech, whether we are relating facfls, or afTuring others of our defigns and intentions ; and on the other hand have a natural immediate dif- like of a felfifli fullen dark taciturnity, and a yet high- er difapprobation of falfhood and inflncerity in narra- tions, or profeflions of our intentions or engagements^ and of all intentions of deceiving others, and difap- pointing them of what by our fpeech we caufed them
olat'inzthem.
Contracts ^;/J Covenants. ^
to expedl from us. Such condu6l alfo appears plainly Chap. o. injurious and affronting to our fellows, who have a' natural defire to know the truth, and an averfion to error and deception ; and who from our focial con- ftitution have a claim upon us that we fhall not dif- appoint the hopes we have given them about any of- fices we undertake for them. Thefe parts of our con- ftitution more immediately fuggeft our obligation to faith in contracis,and the moral turpitude of violating them.
The violation of contracts, on this account, is plain- rheguutcfvi.^ ly a greater crime, than refufmg a like unpromifed of-' fice of humanity which is in our power, when other circumftances are equal. The later fhews indeed a want of the proper degree of focial difpofitions, but caufes no new detriment in life. But infidelity in a contract offends alfo aQ;ainfl a ftrono; moral feeling- in our hearts, and difconcerts the meafures of others, who in dependance on the contract may have omitted to provide the afTiftance they might otherways have obtained. Such breaches of faith, were they frequent in fociety, muft deftroy all focial commerce.
II. Tho' men are on all occafions obliired to a6l the humane prudent part toward others, and not to grafp at unreafonable advantages from their rafh or weak engagements ; yet fo great is the necefTity of maintaining faith in contracts, and the detriment to fociety from diminiiliing it, by allowing many evafi- ons and inextricable difputes about contrails ; that in all matters of commerce about which men are valid
A 2
M ' Contracts ^;;^CovENANTs.
Book II. dlfpofei'S, whatever contrar^s we make, not induced by any fraud or error in the known and profefTed conditi- ons or unjuft violence, w^e are obliged to obferve and ful- fil, tho' we have contracted imprudently for our own in- tereft, or even contrary to fome imperfect obligations toward others. The other party acquires an external ri<^ht, with which we are obliged to comply when it is infifted on; tho' he is ading againft humanity and real juftice in infifting upon it. To fuch cafes the common maxim * is applicable, that '' many things which ought *' not to have been done, yet when done, are obliga- " tory. .
\ This rule holds generally In all matters of com- merce f committed to human prudence, in all alien- able rights, in fuch actions or performances as are not directly impious tov/ard God, nor oppofite to fome perfect right of another, nor to fome fpecial law prohi- biting our tranfa(5lions about them : contracts in which men fm againlt fome general law may be obligatory ; or fuch as are aeainft the interefts of their friends or families, where their right is only imperfed : fuch con- tracts too mufi: likewiie be of fome detriment to the publick. But the allowing men to recede from all im- prudent contra6ts would be of far greater detriment, as it would obfl:ru6l all commerce, or occaiion innu- merable inextricable debates. Whoever repented of a bargain, could always plead the imprudence of it.
J«. -w^ot mat ten they are va lid.
• Plurima fieri Jion dehenty quae fa fl a vahnt.
f Hel'•^ iral vvri»ers regard chiefly the DBoral f uwcr, ai right of adrainiftration or
managing fuch matters : \\\^ principium vel facidtas dans valhiitatem afluiy more thaa the prudence of what is done.
Contracts ^;^^ Covenants. r
the lofs his friends or family would fuftain, its oppofi- Chap. 9. tion to the general command oi providing for oiir'^^^'^^^^^^ own, and to our obligations of humanity. All nations appear fenfible of this, by confirming imprudent con- tra6ls about matters of commerce, and feldom allow- ing redrefs, except where the inequality or the lo£s fuf- tained by one party is very great and manifeft.
III. The law of nature as well as civil laws diflin- Three formsof guiibi three forms of fpeaking about our future ^^lyutur^anLZ* ens or preftations. i. A bare declaring our prefent"'/''-^"'^ °"'' intention or purpofe: this produces no obligation. One indeed may be cenfured as inconflant who often chan- ges without caufe.
2. The fecond is when we promife fome thing for ^ycrfca^ro. the advantage of another, expelling his dependence on our promife, and yet not defigning to convey to him any right to compel us to obferve it. Such promifes are well known to be conditional, upon the good be- haviour of the perfon to whom they are made, even when this is not exprefled ; and we are underftood to referve to ourfelves the right of judging of his beha- viour. Receding from fuch promifes without a juft caufe, is very faulty in point of veracity, and mull: be highly difapproved by every honeft heart on that ve- ry account, as well as the cruelty and inhumanity fometimes difplayed in defeating the juft hopes we had raifed by another's dependence on our veracity. This coniidcration fhould make men both cautious of promifmg inconfiderately, and religioufly careful not to depart, from their promifes without fufEci-
»:ifa.
^ Contracts ^;?i Covenants.
Book II. ent caufe, fuch as muft juftify them to every honed
L/VXj man. But when one departs from fuch a promife, the other party has no other perfedl right than to demand compenfation of any damage he fuftained by taking his meafures in dependence on the promife ; fubmitcing it to arbitration whether his deportment gave juft caufe of departing from the promife, or not; and whether his meafures taken in confequence of it were julHliable. If he is juftified by proper arbitrators, he has a perfecl right to be indemnified; but cannot, even fo, compel the performance of the promife.
pcrf.n con. n . The third form is a perfect contrail or promife, not only binding in point of veracity and confcience, but conferring a perfecl right to another.
i{'hatj^gns imd- jy , In coutracls 'tis by one's own confent that we deem him obhged. And he is juftly deemed to con- fent who ufes the figns which commonly import con- fent. No exception can be allowed upon any alledged fecret diffent or different intention not imparted to others*, or upon any roving of mind or inadvertence alledeed while he was ulino; fuch fio;ns as declared his confent; otherways all contrails might be eluded by fuch pretences, which could not be confuted.
Tadt couver.ti. Words or writiuo; declare our confent moil dlftin6l-
CKS. , ^
ly, but it may alfo be declared abundantly by any o- ther figns previoufly agreed upon by the parties as evidences of confent. When any fign is agreed upon and ufcd with that profefTed defign, 'tis an exprefs contra6l. But there are alfo certain anions which in
* De non apparent ibus ct non exijlentibits idem eft judicium.
Contracts ^^^Covenants. y
their own nature import a confent to covenants or Chap. 9. conditions propofed. Thus if certain advantages are^-^^V^NJ offered to fuch only as fubje6l themfelves to certain engagements or obHgations ; he who afTumes thefe advantages which he could not claim except upon the offer made, is juftly deemed to have fubjecled himfelf to the conditions or obligations expected by the other party. So when one a6i:s what no reafonable man would do without confenting to certain articles, or what is^ univei-fally taken for a confent to them, he is juftly re- puted to have confented to them. Thefe are tacit contra6ls or conventions. The obligation of fuch fip-- nificant actions may indeed always be prevented by exprefs premonition of all concerned, to the contra- ry. And in this the tacit contracts differ from the quaJi-co7itra8iis, or the ohligatio quafi ex contraElu of the civilians. In thefe later the oblio-ation is founded in fom.e obvious maxims of juftice, upon fome action, of the peiibn obliged, or his deriving to himfelf fome advantage at the cxpence of others who neither in- tended to be at fuch expence gratuitoufly, nor were obliged to it. No premonition or remonftrance will free a man from thefe obligations, of which hereaf- ter. But in tacit contracts the obligation arifes only from confent, which is as naturally intimated by acti- on, as it could be by words; and therefore an exprefs previous declaration to the contrary may take away all eaufe of prefuming upon confent.
Examples will befl: explain both. When lands are ^^^-^^^^^ of offered only to fuch as are willing to fettle in a colony
8 Contracts ^;;i Covenants7
Bo OK IT. upon certain conditions of civil fubjeffion; one who LZ-^^o takes poffefTion of fuch lands, is deemed to confent to the conditions. A foreigner fettling with us, and Iharing the prote6lion of our laws and polity, tacitly confents to be fubjedl to fuch of our laws as oblige foreigners, and to our courts of juftice. An heir pof- feiling an eftate fubjecled by the anceilor to this con- dition that all who enjoy it ihall be fubje6l to fuch po- lity and laws, tacitly confents to this fubjedion. If he previoufly declares againft this fubjedlion, he is not bound by it; but the ftate may perhaps juftly pre- vent his pofTelling thefe lands, as it would prevent the refidence of a foreigner who previoufly refufed fub- je6lion to our laws. AddrefPmg fpeech to another im- ports a convention of fpeaking according to our fenti- ments, and ufing words in their cuftomary fenfe ; o- therways the a6lion would be foolifh. But timely pre- monition that the fpeaker only pronounces abfurdpro- pofitions as examples in logick, would prevent the obheation : thefe are tacit conventions. But an heir pofTeirmg an inheritance, or an executor the perfonal eftate, are * lyable to pay the debts and legacies which afte6t the eftate, and no premonition of the heir or executor can prevent this obligation which they fay arifes quafi ex contraBii, VTnZlTranl ^' From the nature of property and the ways of WW ./rw>;. conveying ic, it may often happen that men become
* In the civil law the obligation of the heir to pay debts is not called a quaji-con- triiHus, but he is fuppofcd by zfclio juris the Tame peribn ^ith the deceased. This
is a fubtilty of law ; the natural reafon of obligation is the fame as that to pay lega- cies, which they f ly arifes q-.uTji ex con- traiin.
Contracts ^/^^CovENANTs. 9
proprietors before they have knowledge of the value Chap. 9. of their goods, or the ufe of reafon to manage them. 'Tis plainly for the good of fuch, and for the publick intereft too, that fuch perfons be kept from the difpo- fal of their goods, or entering into any important con- trails, till they attain to fome tolerable knowledge of human affairs. Men difordered in their reafon by ficknefs, or madnefs, are in the fame cafe. On the o- ther hand 'tis plainly unjuft to reftrain men of fuffi- cient wifdom from the exercife of the duties of life, and the enjoyment of their property. Men attain to maturity at very different ages. Before civil laws, the maturity of reafon, when any difpute arofe upon this exception againft a contra6l, could be determined on- ly by the arbitration of fuch who knew the ordinary condudl of the perfon at the time of the contrail. By the law of nature one is obliged by any equitable con- trail he entered into at any age, provided he knew what he was doing. But to prevent frauds and vexa- tious tryals about the maturity of reafon, which too muft at feveral times be determined as to the fame perfon according to the different fubjecls about which young people may have occafion to tranfacl, and that men may have at laft fome fecurity againft the inex- tricable exceptions about the mature reafon of the perfons they have to deal with, 'tis abfolutely necef- fary that in civil fociety fome pofitive law fliould fix a certain age in a prudent medium, fo as to admit as few as pofuble to manage their affairs before tnatu- rxty of reafon, and yet exclude as few as may be after VoL.IL JB
JO Contracts ^;?n^ Covenants.
Book IT. tlicy havc attained it. The exception of a phrenzy is i^^^v^V^more cafily determined by arbitrators or judges. Minority. 'phc Roman law about minors, now partly received over Europe, had great conveniencies. To the age of fourteen compleat in males, and twelve in females, they a6led nothing validly. Tutors acted in their names. After thefe years the minor acled, but no- thino- was obligatory, without the confent of curators, until he had compleated his twenty-firft year. In ear- lier times this term was delayed to the twenty-fifth year. In this period a minor was made acquainted with his affairs, as the curator could not a6l without him, and he might be a check upon any fraudulent defign if he had attained to any wifdom ; while the fu- perior prudence of the curator prevented the minor from hurting himfelf. The law to prevent the frauds minors are expofed to, gave them leave to recede from any contra6l entered into without confent of cura- tors before maturity, tho' they might be obligatory in confcience, and are fo always where there is no ini- quity in them, and the minor knew w^hat he was do- ing at the time of contracting. After the twenty-firft year compleated, they were capable alone of all le- gal a6lion, except finally difcharging their curators ; for doing this validly they were allowed the further experience of four years.
But as a minor fhould not be injured by imprudent contracts ; fo he is obliged, after coming of age, to let no man fuffer by any equitable contradl entered in- to with him during his minority, out of real kindnefs
The Nature (/'Contracts. n
or confidence of his integrity, without any fraudulent Chat. 9. defign, even tho' civil courts do not confirm fuch con-v.X^rVy t:ra6ls. And courts of equity always fuftain whatever was prudently advanced for the maintenance or edu- cation of a minor in the abfence of his parents, or cu- rators, as a juil debt upon him.
'Tis pleafant to obferve how thofe authors who paint out our nature as a compound of fenfuality, feU fiflinefs, and cunning, forget themfclves on this fub- je6l in their defcriptions of youth, when the natural temper is lefs difguifed than in the fubfequent parts of life. 'Tis made up of many keen inconilant pafTions, many of them generous ; 'tis fond of prefent pleafure; but 'tis alfo profufely kind and liberal to favourites ; carelefs about diflant interefts of its own; full of con- fidence in others ; ftudious of praife for kindnefs and generofity ; prone to friendihips, and void of fufpicion.
VI. The contracts of fuch as are manifeflly difor- 'Dr^r'^unnc[u dered in their reafon by drunkennefs, are not obliga- tory, as 'tis fraudulent in one to entice them into con- trails during fuch diforder. If my diforder was not known to others, I am plainly obliged to compenfate any damage occafioned by my contracting, tho' I am not bound by it. A diforder I have culpably brought on myfelf can never free me from this obligation ; tho' it may from that of a contract. Men are not ob- liged to preferve themfelves always in a capacity for contrading with others, otherways they fliould never fall alleep. But they fliould always prevent their do- ing hurt to other S; and take precautions againfl any
B 2
j2 T7;^ Nature 0/ Contracts.
Book II thino- In their conduc^l that may be injurious. If they v./-v-v;do not, they are bound to make full compenfadon. Mutu.i c.fcnt VII.' To the validity of contra6ls mutual confent ■"'/"v. -g neceffary ; and that even in donations, as well as other tranilations of right. In donations indeed the confent of the receiver is eafily prefumed; and yet if he accepts not, the property is not altered. The pro- prietors can fufpend their conveyances upon any law- ful conditions or contingencies they pleafe. Prefent acceptation is not always neceffary ; as in legacies to perfons abfent •, and in all conveyances to infants. No man indeed acquires property againfl his will, or un- till he confents to it; but the granter may order the property to remain in fufpenfe till it can be accepted by the grantee; or may commit the goods to truftees till the o-rantee fhews his will to accept them. Goods may thus be preferved in fufpenfe for the benefit of perfons unborn.
All this is very intelligible if we remember that pro- perty is not a phyfical quality; and that all intended in this doctrine is this, * that fuch management of o-oods is humane to individuals, and confident with, nay conducive to the good of fociety; and that a dif- ferent condu6l would be inhuman toward the gran- tees, or the perfons concerned for them, and hurtful to fociety. If property were a phyfical quality, it muft indeed have a prefent fubjeft.
If the child when come to maturity declines to ac- cept, no man can force him to it; the goods remain
• See the preceding chap. \ 3.
The Nature ^Contracts. i?
with the granter, or fuch as have a right to fucceed to Chap. 9. him. But from the fure profpe6l we have that valu- \y^^r^\u able grants will be accepted, we ufually call the gran- tees proprietors, as foon as the conveyance is com- pleated.
VIII Jn contrails made upon a condition there is no ob- ^f ^' '^ '*' ligation unlefs the condition exifts. A condition is pro- perly " fome event, now uncertain, upon the exiftence ^' of which the force of the contracft is fufpended." And 'tis always diftincl from the mutual. preflatlons ftipulated, and from the confent of the parties. In the Civil law a condition is an event which has not yet happened. If the event exifted at the time of the con- trail, tho' unknown to the parties, the contract was called abfolute. If it was then impofTible, there was no contra6l. This needlefs diftincftion was of no mo- ment in contrads, tho' it made a great difference in conditional legacies, and inheritances. If the heir died before the exiftence of the condition, tho' it after- wards exifted, the eftate paffed from his family to a* nother. If it exifted before his death, tho' it was un- known, the eftate continued in his family. Thefe are. unreafonable fubtilties. .
Thefe conditions alone can affecl the obligation of a contra6l which are either expreffed in the contract as conditions, or which are underftood as fuch from the nature of the affaij by all men of underftanding_; . or fuch events as one party afterted to another and un- dertook for the exiftence of them in the tranfaclion^ which conicquently the other party may be prefumed
J The Nature o/Contracts.
Book II. CO have made the condltioa of his confenting. To \y^sr^ allow exceptions againft contracls from the non-exi- ftence of any event or circumftance which one of the parties alledges he fecretly had in view, while fuch thinos are not commonly expected or underftood as conditions in fuch tranfa6lions, would make all con- trails uncertain. .Aiiiv \r.c\t ccn- In many of our common promifes and contrails """""" many conditions are univerfally underftood to be ad- ie6led tho' they are not expreffed ; this all men of fenfe conclude from the nature and importance of the mat- ter we are employed about. Thus if one promifed his aihrtance to-morrow to his friend in any common bu- fmefs, this condition is always underftood '' provided '' he continues in health, and no calamity befals his *^ own family or friends, in which his aid may be of in- " comparably greater confequence than the aftiftance '' promifed." Should a man's own houfe take fire, or any great diftrefs befal his family, he is free from the oblio-ation. In like manner when one promifes impli- citly at the defire of another to grant him a requeft he has not yet expreffed, 'tis always underftood, " pro- " vided the granting it be lawful, not contrary to pi- " ety, or any right of another; provided the favour re- " quefted be one of thefe friendly offices which a good *' man can reafonably ask of his friend." If it have not thefe qualities, there fliall be no obligation. rrornnd aui ^^' ^^ ^^'^^ mlftook thc vcry obje6l of the con- citotheohjca. tra6t, or was deceived in thefe qualities for which fuch goods are commonly valued and dcfired; is not obli-
The Nature of Contracts, i r
ged by the concradl. He bargained for different things Chat. 9. from thofe obtruded upon him. He fhould reftore orO^VX>> compenface whatever he received on account of the contra6l from which he now recedes. When one's own folly or negligence occafioned the miftake, by expec- ting fuch qualities as are not ufually expe6i:ed in fuch goods and for which the other did not undertake, he is bound by the contract ; otherways all contracts might be eluded upon pretence of difappoincment in fome fuch fecret hopes. If the miftake or deception has only been about the current value or mercat price, or about fome fact quite foreign to the prefent fub- je6t of the bargain, without any fraud of the party I deal with, I am bound ; but have in the former cafe a perfect claim to have the price lowered to the cur- rent value ; and in the later, have a claim in humani- ty, when I can ftiew that I was led into the contract by miftake, to be freed from it, if it occafions no lofs to the other party; or if I am willing to compenfate it. But this I can feldom infift on as a perfecl: right.
In all contracts good men ftiould ufe all poflible omgathn t^ candour in difcovering the qualities and circumftan- ^''''"'^'^' ces which raife or lower the values of the o-oods : and are bound to reftore v/here too much is received, or add where too little was given. This conduct tho' not very common, is neceffary to fatisfy an honeft heart. 'Tis alfo our duty to releafe others from inconvenient bargains upon receiving compenfation of any lofs we fuftain by the difappointment. In all thefe affairs 'tis of great ufe to examine well the feelings of our own
j5 7!6^ Nature o/'Contracts.'
Book II. hearts, and to confider how we fhould like fuch con- V^i^VXJ du6t toward ourfelvcs as we are intending toward o- thers *. This prepares the heart for an impartial dif- cernment of what is juft and honourable, and what not, by making the felfifh pafTions operate a little on the other fide. And thus the moral faculty fhall be freed from their byafs and their fophiftry, and all hu- mane fentiments in favour of the other party fhall oc- cur to us. There cannot be a more ufeful piece of felf- difcipllne in all our dealings with others. vr:r4 force X. The next clafs of exceptions from the obliga- ;;;'/"'"'^'"\lons of contraas are thofe from unjufl: force and fear. Fear afteffing contra6]:s is of two forts ; fometimes we intend by it a fafpicion that after we have performed on our part, the other party will decline his part. In this cafe 'tis plain that he who contracts with one who difregards avowedly all faith and honefty,without hav- ing proper means to compel him, a6ls very imprudent- ly, and yet the contracl is not void. Where there is jufl: ground for this fufpicion, one has a right to defer per- forming on his part, till the other either performs his part lirft, or gives fufficient fecurity for it. When he
* Matth. vll. 12. This excellent rule ' is miftaken by fome authors, who without acknowledging any prior principle of mo- ral reafoning, or any inward immediate tafte of acftion, would make this propofiti- on an axiom whence they would deduce all rules of condud. 'Tis not ufeful this way. A miferdefircs an exorbitant price when he fells : he's not obliged to give it when he buys. A lewd perfon defires that Q\hztz fliould yield to his foUcitations :
fiiould he therefore yield to the folicltatl- ons of others ? The perfon indidted wifhes lo be abfolved tho' he is guilty. Is it there- fore his duty, were he fitting in judgment, to abfolve the guilty ? The axiom needs thefe two limitations, i . that the defire be juft, and again that circumlbnces be equal. The former muft prefuppofe the rules of juftice previoufly known : they cannot therefore b« inferences from tliis axiom.
The Nature o/'Contracts. 17
does either, a good man fhould obferve his concradl Chap. 9. with him were he the word of mankind. v./'VXJ
No tenet can be of more horrid confeqnence than p^'^^^ oingato- this, that '' bad men have no vaUd rights, or that ^oo^LIm^c^'-' " men are under no obHgations to them," whether they are deemed bad on account of practices, or of opinions we may call herefies. The laws of God and nature bind us to confult the happinefs even of the worft of men as far as it confifls with that of the more ufeful members of the great fyilem, and to do them all good offices which do not incourage them in their vices. To obferve lawful covenants voluntarily ente- red into with them is fo far from encouragine their vices that it has the contrary tendency. It fhews them the beauty of integrity, and its ufefulnefs even to themfelves. The contrary practice gives them an ex- ample of injuftice, and provokes them to it. They conclude that there is no honefty ; that all pretences to it are hypocrify ; that their own infamy is unjuft, fince others ar^ no better. The moral chara6lers of men are not unalterable ; fome who were once diftin- guifhed in wickednefs have become eminent in virtue; no man is unworthy of our care.
Again, how dangerous muft this tenet be while it is fo hard to judge of the moral goodnefs of others^ and men are fo frequently led by prejudice and party- zeal into the mofi; unfavourable opinions of the beft of men, and then by this tenet they are doomed by us to have lofl all the rights of mankind. None are free from all faults. And how fhall we fix that degree of
Vol. IL C
jg The Nature (^/"Contracts.
Book II. vice which forfeits the common rights of men, or
V^VXJ makes them incapable of acquiring any. This tenet cannot take place even againft fuch as avowedly dif- reo-ard all laws of God and nature. Even fuch men forfeit only thofe rights the denying or non-obfervance of which is neceffary for the fafety of others againft their injuftice and violence, as we Ihall lliew here- after.
XI. Another fpecles of fear affeding contrails is
« Ji^s"^^//*^ when one is moved to con trad or promlfe by fome evil
C:"' " '' ' threatened if he do not.
Here i . If I contra6l with any honeft man for his afTiftance againft any evil unjuftly threatened by a third perfon ;the contract is obligatory: the aid given againft fuch dangers deferves compenfation, as well as any other fervice.
2. If the dread of fome great evil unjuftly threate- ned by one, compels me to contra6t with a third per- fon not in concert with him who compels me, and un- apprized of my being compelled : the contract feems void when I can make proof that this dread alone en- gaged me to it ; fmce it had not that free confenc which feems neceflary in contrails. And yet I am plainly obliged to compenfate all lofles any innocent man has fuftained by my means, in order to fecure me from danger.
3 . Contracts to which one is compelled by fear upon the juft fentence of a judge, are painly valid, fmce the fentence is juft. An external right often attends the fentences of judges which are not juft-, and men out
The Nature <?/^Contracts. 19
of duty CO the ftate or civil confticution, to which they Chap. 9. have fubjeclcd themfelves, may be obhged to com- ^•-/'VNJ ply with them, when no peaceable means can prevail with the other party to remit his external claim, as it becomes a truly good man to do.
4. In cafes where the perfon with whom I make the ^'g^'^ts vauu contra6l has extorted it by his own unjiift violence, a trZia" '* diftinclion muft be made between ^' violence really un- " jufl:, yet upon fuchfpecies of reafons as may impofe ^^ upon men whofe general purpofe of life is to adl ^' juillyf and that '' violence which is ufed without ^' any Ihew of right by men who openly renounce all *' regard to the focial laws of mankind." The former fort of unjuft violence at leaft, muft ever be on one fide in all the folemn wars of nations, and in all civil wars : and fometimes there is unjuft violence of the la- ter fort even in thefe publick wars. More frequently indeed there are even on the unjuft fide in publick wars fuch fpecious pretences, as through the fecret in- fluence of the paiTions of ambition, zeal for one's own fide, or defires of advantages, may impofe upon men to believe their caufe to be juft: and many in lower ftations upon the unjuft fide are under invincible igno- rance of the injuftice. The fide which is really unjuft, cannot by violence obtain any perfect right which they can ufe with a o-ood confcience : what is taken ouo;ht to be reftored, and the promifes or contrails extorted ftiould be remitted again. And yet where there are fuch fpecious reafons on their fide, there is an exter- nal right acquired by treaties obtained. The other
C 2
20 The Nature (/"Contracts.
Book II. ^i^c are under an obligation, out of regard to thege- ^^/VXjneral intereft of mankind, not to violate fuch treaties, tho' very difadvantageous to themfelves and natural- ly iniquitous ; atlealt, while they are not quite incon- fiftent with their liberty, independency, and enjoy- ment of the grand rights of mankind, for fecuring of which all thefe laws of nature are conftituted : un- lefs they can prevail upon the vi6torious fide to rc- leafe them from their covenants, they are bound by them. Some extraordinary pleas of necefTity may make jufl exceptions from any general rules which can be found out in thofe matters. Of thefe hereafter. Fcr ■U.J..* rea. Thc graud rcafou of our obligation by fuch treaties ■''"'• really unjuft, is this, that if they were held as of no effed, if the exception of the unjuft violence by which they were extorted were fuftained, no treaty could have any effedl to put an end to wars. They muftbe ended only by the ruin or entire flavery of one fide, as each fide would have this exception of unjuft force to renew hoftilities upon againft the treaty, whenever they inclined. This exception therefore is always un- derftood as precluded in publick treaties of peace. ^, , , ,j ^. But Avhere violence is avowedly unjuft, without
Ti:e[e hold not J , . ^''
for pirates on<i rj^^ij fuch colours of Hght as could impofe upon a good man, which fometimes has been the cafe in publick wars ; or when perfons by the courfe of life they betake themfelves to, renounce all regards to law and juftice, ^s bands of pirates and robbers ; the cafe is very diife- rent. Such perfons by the whole tenor of their lives feem to abdicate all rights and claims founded on the
The Nature o/"Contracts.. 2.1
fecial law of nature: as they dircvftly and avowedly op- Chap. p. pofe the whole foundation and end of that law, the v.-/V\J happinefs of mankind. The publick interefl, the end of all law, requires that fuch avowed enemies of all fliould be deftroyed, and fhould hold no beaefit by thofe laws, which they renounce in this very adl of ex=- tor ting promifes by unjufl: violence. The non-obfer- vance of fuch promifes cannot hurt fociety ; but the obfervance may, as it puts good men more in the power of fuch monfters, and makes this monfErous life more advantageous and inviting. . If none regarded fuch promifes, they would not be extorted. Robbers would expe6]: no more than their prefent fpoils. Can one be under obligation in the ufe of fpeech to fuch as renounce all right and obligation ? Sure fuch ma- nifeft renunciation may releafe from the alledged ta- cit convention in the ufe of fpeech. When one al- lows me to fpeak without exprefTing my own fenti- ments, I may do fo without a fault, as the hearer has relinquifhed his right. As rights are acquired in tacit contradts, and the quaJi-contraElus^ by a6tion ; rights alfo may be renounced and abdicated by adlion, or for- feited by it, whether the agent directly intended it, or not.
We owe Indeed good-will to the worft of men, and rm n^-opp^ fhould do them fuch Q-ood offices as confift with the^'^'^";'^''^^''
O good- vj ill.
publick good. But pirates and robbers, or fuch as Ihew the fame fpirit in higher ftations or offices, are the avowed enemies of mankind. We fhould defirje ^heir reformation, and. avoid ufelefs cruelties to wari
22 The Nature o/'Contra'cts.
Book II them when they are in our power. Buc our regard to the ^./V^o* o-eneral intereft muft recommend to us all the necefla- ry means of putting a flop to fuch a courfe of life, and to prevent their reaping any advantage by fuch avow- ed hoftility to mankind, and abdication of all laws. men they have If iudccd wc havc contracted with fuch perfons Irais! '"^ ""'without compulfion in the ordinary matters of com- merce, we are faulty in maintaining commerce with them; and civil laws juftly refufe them any acftionu- pon fuch contracts : but yet unlefs we are prohibited by the laws of our country, we fhould obferve our con- tract, or reflore whatever we have received. In thefe a6ls no force was fuppofed, and by our voluntarily con- ti'a6line with fuch men when we knew their charac- ters, we feem to have tacitly renounced that exception founded upon the general tenor of their lives.
If fuch perfons fliew any difpofition to reform, and return to a focial life, as 'tis poflible for the worft to amend ; whatever a ftate or community has volunta- rily promifed to them without immediate compulfi- on, Ihould be religioufly executed as to their impuni- ty, or retaining their prefent poffefTions, fince in a vo- luntary treaty with them the exception which arifes from their courfe of life is tacitly renounced. 'Tis foolifh indeed to truft their bare promifes. But if they offer real fccurities by firft furrendering arms, fhips of force, or forts, in which their ftrength confif- tcd, a treaty fecuring to them impunity may be fome- times the wifcll method of preventing future mifchiefs without effufion of blood. Granting fuch men im-
the matUr nati, ral and moral.
The Nature (jTContracts, 2r
punity, and the enjoyment of their fpoils, has of It- Chap. 9. felf a bad tendency, and muft move our indignation ;V./VXJ' but there may fometimes be potent reafons to juftify it, and then compenfation fhould be made out of the goods of the community to fuch private perfons as for pubhck reafons are thus precluded from claiming it from thofe who injured them.
XIL To the validity of a contract 'tis neceflarv that the matter of it be poluble. We call that naturally pofTible which we can get accomphlhed when we in- cHne, by ourfelves or others. And that is called mo- rally polTIble which no law prohibits.*
As to the exception againft contrails from natu- ral impoflibility ; if what feemed pofTible when we contradled, becomes or appears afterwards to be im- pofTible, we cannot be bound to it; but whatever was given to us or performed on account of it Ihouid be reftored or compenfated. When one knew at firft the impofTibihcyof his part,or defignedly afterwards made it impofTible, but fraudulently engaged the other to^ perform his part firft, the fraudulent party is not only obliged tof compenfate the damage, but to make good the value of the bargain, or all the profit the other could have made, had the contract been faithfully ex- ecuted J. Where there has been no fraud, but only in- advertence in fuch contrails, 'tis generally enough that the damage be compenfated by him who was cul- pably inadvertent.
* Nihil pojftmus nifi quod jure pojumiis. \ Pen/are dammm, % Penfare qucd inter eji.
2 . The Nature of Contracts*
Book II. How far the matter of contra6i:s fhould be lawful v^y'V'V^may appear from what was faid above.* We cannot lujXrinit'cd.hmdi ourfelves to any thing du-e6lly impious toward God, but our duties of worfhip are not fixed invaria- bly to certain times. A man may be bound by con- tradt to fuch offices as may vindicate his omiflion of external worfhip at the ordinary times of it. But he cannot be bound either to evil affecSlions, or any adls of impiety which naturally evidence fuch affedlions, fuch as blafphemy, or abjuring the religion he judges to be right. Urgent offices of humanity which can- not be delayed, juftify the poftponing of worfliip for fometime, for mercy is at all times more acceptable to God than facrifice. Were indeed the omiflion of publick worfhip demanded as a fymbol or teflimony of our concurrence in idolatry, or of renouncing the true religion, no promife or contrad, or prohibition of a civil fuperior, could j uftify fuch omifFion. And in many cafes the mofl open f oppofition to fuch pro- hibitions would be heroick.
In like manner tho' contrails may oblige us in mat- ters of commerce contrary to the imperfecl rights of others, when we con traded without a fraudulent de- ' fign knowable by the other party : yet where the frau- dulent defign muft appear, as if one conveyed J by contract or promife to any perfon or fociety all that portion of his wealth which {hould otherways be em- ployed in humane or grateful offices, declaring that it was that portion; and that he conveyed it to evade
*Sea. 2. oftliis chap, f Dmiehi. 7.— II. :}: iJ/^///^. xv. 5. Marks'iu i\.
The Nature ij/'Contragts.
fuch obligations, the deed is invalid as being fraudu- lent on both fides. The afcertaining of commerce requires that contracts conveying perfed rights fhould take place of duties of humanity, where both cannot be fulfilled, provided fuch contra6ls are made without a fraudulent defign. But where fuch defigns are known on both fides, there is no reafon for fuftaining them as valid.
When contra6ls are made about matters we hadi;,]^",^"",'^';' no moral power to contra6l about, if this was known '';^' "'''"'"' •' on both fides, or both fides were equally culpable vniramng, their ignorance of it, the contra6ls are void. Either party repenting before any thing unlawful is execu- ted, is free from the engagement; but then one fliould not retain any price or confideration given in view of it. If the fa6l is committed by one who was invin- cibly ignorant of its unlawfulnefs, he has a right to what was promifed ; efpecially when the guilt would only afFe6l the other party. As when any officer of juftice executes a writ at my fuit againfl: my friend or benefa6lor whom I am inhumanly or ungratefully pro- fecutlng. If both knew the guilt of the a6lion, and it equally affe6led both; or both were criminally igno- rant of its guilt, and the facl be committed; no right fhould arife to either fide from fuch contrails or alli- ens. The executor ftiould not receive the reward of his iniquity. If it has been previoufly received, the hi- rer ihould not get it reflored. No advantages or hopes of gain fhould attend fuch engagements or a(9:ions ; they fliould be difcouraged by all means. If the un-
VoL.IL D
2^ The Nature (?/^Contracts.
Book ir.dercaker has received the price before the execution \^yv^ and relents, he fhould not indeed retain it ; nor yet . fhould he reftore it to one more criminal than himfelf. It fhould go to fome pubHck ufe.
One who contrails or promifes about the goods of others and mutually known to be fo, is only then bound to ufe all lawful means to obtain them from the proprietor. When thefe are inefFedual he is in the cafe of fuch as contracted for impofTibilities. If the promifer may be prefumed to know this right of a third perfon while the other party is ignorant of it, the promife is fraudulent, and binds to the making good of the value of it to the innocent party. v/hat contraHs XIII. Of two covcuauts couvcyiug to different per- I/Vr/.'"'" ' 'fons the like right to the fame thing, the * prior muft take effecfi:. All commerce would be uncertain if a fubfequent contrail could defeat a prior of the fame nature. The fecond contradl is in the cafe of an im- pofTible contra6l fraudulently made, and is to be judg- ed of by the fame -f rules. Where the contrads are of different natures, one conveying a real, the other a perfonal right to obtain the fame thing, the real right will take place of the perfonal tho' prior to it, for rea- fons above-mentionedJ.The perfonal contradlisin the cafe of thofe made about impofTibilities, and has the fame moral effecls. If indeed the prior perfonal or unfiniflied contra6l was previoufly known to both the parties in the fubfequent real contradl, the fubfequent
• ^u f nor tewpore potior Jure. f Sec fe(ft. 12 of this chap. ^ See chap. v. fc(fl. I . of this book.
The Nature o/'Contracts. 27
being plainly fraudulent on both fides, fhould be made Chap. 9. void. y
XIV. Men contracl with others either in perfon, or by agents, factors, deputies, ambaffadors, or any one they have by their deed empowered to tranfacl va- lidly in their names. Where unlimited general powers are given by the conftituents, they feem obliged to ra- tify w^hatever is done by their deputies in the matters committed to their management without refervation, unlefs the conftituent can diredly prove that their de- puties were corrupted by the other party, or the terms agreed to are fo manifeftly unreafonable as to give fuf- ficient proof of corruption to any wife unbyafTed ar- bitrator. To avoid the dangers of unlimited powers, publick inftruffions or powers are now given, declar- ing what matters are committed to thefe deputies and within what bounds ; which powers are mutually made known. The conftituents are bound only by fuch con- tra6ls of their deputies of any kind as are within the limits of their powers.
D 2
28
Book II. . -
^-^'v-vj C H A P. X.
The Obligations in the Use o/'Speech.
WE mendoned In the former chapter fome natu- cpc, ...u.,;i .. ral principles which are plainly deftined to re-
v.raaty. gylatc our fpecch. As the power of communicating to each other our fentiments, defires, and intentions is one of the great bleffings of the human fpecies, fo appofitely joined with our focial feelings and afFedi- ons ; nature has alfo implanted a moral feeling in our hearts to regulate this power. We are naturally prone to communicate our fentiments. Truth is the natu- ral production of the mind when it gets the capacity of communicating it, difTimulation and difguife are plainly artificial effeds of defign and reflection, and an immediate approbation naturally attends both this communicativenefs, and the ftedfaft purpofe of fpeak- ine according to our fentiments. In the exertino; thefe powers of fpeech in the manner our heart at firfl ap- proves, we mufl no doubt have a regard to fome of the more general controlling principles in our conflir tution, fo as not to follow any inferior one in oppofi- tion to the fuperior, as we muft controll fometimes and reftrain the exercife of pity, gratitude, and other lo"ely principles when they interfere with the publick happinefs: but where candour, opennefs, and a fincere difcovery of our fentiments does not interfere with it^. the immediate feelings of our hearts fuggefl our duty
Our "DvTY w de U/e o/S?ET,cu, 29
and obligation to it, and that prior to the general Chap. 10. obligation of ufing this powerful inflrument of fo ma- ^.-^VXJ ny blefTings in fociety in that manner which the ge- neral intereft requires.
There are other ways in which we may communi- cate our fentiments, defires, or intentions, as by fym- bols, hieroglyphics, painting, motions fignificant from nature, or cuftom. But fpeech and writing are by far the moft diflincl and ufeful fiens.
11. To underftand our duty in the ufe of figns, we ^ ^ ,.
nir 1 1 ^ ^•n' o^ ^ iiecejfary di-
muit oblerve that grand * diltmcflion among them,-'?'«^«"<'/y^^«*' that fome of them either by natural fimilitude and connexion, or by cuftom, intimate to the obferver a propofition, or give him occafion to infer it, without his imagining that the perfon who ufed thefe figns had any intention, or made any profefTion of com.muni- cating by them his fentiments or defigns to him . Thus by feeing fmoke, we conclude there h fire ; by feeing it arife in many places of an hoftile camp in an eve- ning, we conclude that the army is not in motion; by feeing light all night in a window, we conclude that fome perfon is watching ; nor do we imagine that by thefe figns any perfon profeffes to communicate to us his fentiments, or to inform us of any propofition. But 2. There is another ufe of figns, whether natural or cuftomary, which plainly imports fuch a profefTi- on in the man who ufes them; and 'tis only by doing fo that they fuggeft to us any propofition.
* See Gr^t. de J. B. et P. lib. iii. c 2i. § 8. N. ii. et Pufend. de J. N. et G. fife, iv, c. i>
^Q Our Duty /;/ the Ufe ^Speech.
Book II. This divifion of figns is different from that into Ky\^KJ natural, and cujlomary or infiituted. Both natural and cuflomary figns may be fo ufed as to import a profef- fion of communicating our fentiments to others. The fending little wings or fpurs to a friend at a diftant court, fignifies to him that he is in danger; and that only upon this juftly prefumed profefTion of ours to in- timate to him our opinion about his danger. Defign- edly to deceive one by fuch figns, or by any hierogly- phicks, would be as criminal as by a letter; andyetthefe are natural figns. On the other hand, inftituted figns may leajl one into a conclufion about our fentiments without his imagining that our ufing them was a pro- fefTion of imparting our fentiments to him. A letter intercepted, or fpeech over-heard by one to whom it was not addrefled, may lead him to fuch conclufions, while he yet knows there was no fuch intention or profeffion of communicating any thing to him. Our duty in the fc jjj^ ^g to fio-us importinff no fuch profeffion, there
■which do net pro- ^ iiT • 'i r r ^
fefs toexprcfiis, this gcncral obligation in the ufe of them " to do
our fentiments. ,, ^ ' • r i -i
*^ no detriment to any innocent perion, or to the pub- " lick, by leading men into any falfe conclufions which " may be pernicious to them." Wherever another has a right, perfect or imperfect, to know our fenti- ments, there even concealing them by filence, as well as all deception by any figns, is criminal. But where others have no fuch right, and much more where there is a juft caufe of war, fo that even violence is lawful ; or wherever deceiving others may do good ; we may deceive them by fuch ufe of figns as imports no pro-
Our Duty in the U/e of Sfeech. oi
felTion of communicating our fcndments. Such Jfra- Chap. io. tagems are juflified by all, and may be ufed toward a^-/VXj friend for any innocent purpofe. A ftudious man may darken his chamber that others may conclude that he is abroad.
But in that ufe of figns which imports a profefTion /« thofe-.~uch of imparting our fentiments, upon which their ^i^-^ltatVlZli nification depends, the cafe is different. A great part'"* of the pleafure of a focial life arifes from mutual con- fidence in each others veracity in narrations, as well as promifes. We often take our meafures in dependence on the narrations of others, and derive from them much of our knowledge in human affairs. Deceivino* . others therefore defignedly by figns juftly underftood as containing this profeflion of imparting our fenti- ments, and interpreted by them in the ufual manner ; as our hearts muft immediately condemn the infince- rity of it, fo upon refle(5lion we fee it tends to deprive human life of all thefe advantages from mutual con- fidence in converfation.
This ufe of figns too imports a tacit convention to impart our fentiments to the peiibn we addrefs them to. Were not men perfuaded of fuch an engage- ment, it would be vain and foolifh to addrefs fpeech ferioufly to another, or to liften to what is faid. Sup- pofe men imagined there was no obligation to vera- city, and acled accordingly ; fpeaking as often againfl: their opinion, as according to it; would not all plea- fure of converfation be deftroyed, and all confidence in narration .-^ Men would only fpeak in bargaining,
72 Our Duty in the Ufe of S?eech.
Book II. and in this too would foon lofe all mutual confidence.
V-/^V>^ Tho' we are not always obliged to difclofe our fenti- ments, yet from thefe confiderations it mufl appear that we are obliged, whenever we ufe figns in a way that imports a profefTion of imparting our fentiments, to be faithful in this profefllon; or to '^ ufe them fo as *' fliall impart our real fentiments according to the '' reafonable interpretation of fuch figns." And this is the general law of veracity.
Kfcefary limi- jy Thcrc arc fomc necellary limitations of this rule, or fome rules of interpretation of figns, efpeci-
ch3r.gtoffigni^2!^yj of words, to be obferved. i. When the fignifi- cation of words, or other figns dependent on inftitu- tion and cuftom, is changed from the old original one, we are not guilty of falihood if their fignification according to the prefent cuftom is true. Thus expref- fions of courtefy, and the ordinary defignations of cer- tain orders and offices, import no fuch opinions of the relations, or moral qualities of the perfons they are addreifed or applied to, as the words would import on fome other occafions ; and fo no body is deceived by them. They only fignify our intention of common civilities, or of paying the ordinary deference to thefe ftations.
^^t^i!a£^'' 2. When in certain affairs 'tis known that men do not conceive it an injury to be deceived, there is no crime in falfe fpeech about fuch matters. This is the cafe in fome diverfions. In thefe trifling matters we fee there is no mutual confidence, and thence may dif- cern what would be the effed: of falihood in fcrious
Our Duty in the Ufe o/'Speegh. o^
narrations. If in fome few greater matters men have Chap. ic. relinquifhed their claim to the veracity of others, there '^-^'>'X-> is no obligation to it. A tacit remifTion can free from a tacit convention; or rather in fuch matters, addref- fing fpeech to one imports no convention. No man cenfures a phyfician for deceiving a patient too much dejected, by exprefTing good hopes of him, or by de- nying that he gives him a proper medicine which he is fooliMy prejudiced againfl: the patient afterwards will not reproach him for it. 'Tis true men cannot be often deceived in fuch matters ; confidence is foon loft in them. But the good end may be obtained, the prejudice maybe removed, and the patient does not difapprove the deceit. Wife men allow this liberty to the phyfician in whofe skill and fidelity they truft. Or if they do not, there may be a juft plea from ne- cefTity; of which prefently.
3. Nay if falfe narrations are frequently pra6lifed ^^ouenfurcdiy on all fides in war; if the cuftom be fo received that none complain of it as an improper artifice : however before the cuftom was received and known fuch nar- rations were unjuft and treacherous ; yet, when it is avowedly received, they can fcarce be called unjuft : fince men feem mutually to remit their right. Such artifices indeed cannot be often repeated with fuccefs, as they are foon fufpe6led.
The cafe is quite other ways in all ferious narrati- ons of men at peace. Nor indeed is the cuftom uni- verfally received in war. But as to any deceptions in any form of treaty or convention, even during a ft ate
Vol. II. E
parties concer- ned.
^ . Our Duty In the Ufe o/'Speegh.
Bo OK IT. of hoflility, they never were or can be allowed as law- i^y^V^^ ful. 'Tis by means of treaties alone that an end can be put to war without the cruel ruin and devaftation of one party ; by treaties alone can any humane me- thods of war be received: to make them engines of deceit and hoftilicy makes them ufelefs, and all horrid devaftations mull enfue : it mufl; therefore be highly criminal. r r- . n A. Another limitation or exception allov/ed by-
Cofis of tnjiiji ^ i-ri-n- 1 T
force. xno'A. authors on this iubject is, when promiles or nar- rations are extorted by the avowedly injuft violence of men who in their courfe of life renounce all the laws of nature: as 'tis alledged that they have forfei- ted all thefe rights of mankind, the maintaining of which to them would fortify or encourage them, or give them advantages in their wicked courfes. rrevhus tnii- 5. Another exception is obvious, when one has pre- v.,tio,imade. y^Q^fly intlmatcd to thofe concerned that he does not on a certain occafion fpeak according to his fenti- ments, or in the common acceptation of words. Thus when in teaching, men give examples of falfe propo- rtions ; or when men have declared that they appro- priate certain ambiguous words to a fignification dif- ferent from what is common ; or when friends have previoufly agreed upon meanings peculiar to them- felves in their correfpondence ; there is no fault, tho' the words would intimate to others a falfe propofi- tion. cfnoffi.guhr 6. Another exception much infifted on is in cafes '""'■^"•^' of fingular imminent necelTity, which 'tis alledged fa-
Our Duty in the life ^Speech. ^/^
perfedes the obligation of many of the fpecial laws Chap. io. of nature which bind us facredly in all ordinary cafes. v^^^VX^ As this plea from extraordinary cafes of necefTity is not peculiar to the fubjed of veracity in fpeech, we defer it to be confidered more generally * hereafter. And fubjoin here fome more fpecial ufeful rules in which good men muft agree.
IV. The general advantages of idncerity and of the ^'""'JT''^ ' mutual confidence thence arifing in fociecy are fo great, and the effedls of infincerity and falfhood fo per- nicious, that if any exceptions are allowed in cafes of necefTity, the necefTity muft be very great and mani- feft, that it may over-ballance the evils on the other fide.
2 . Wherever we are under obligation to impart our fentiments, we are bound to ufe fuch words as we ^Jl^llf judge moft proper and efFedual for that purpofe; and to ufe other words defignedly which we forefee will deceive the hearers, tho' in fome other way of interpre- tation they may be true, is criminal. But in cafes where we are not obliged to declare our fentiments, on account of the bad condudl or intentions of fome hearers, or where our refufmg to anfwer fome capti- ous queftions might difcover, as much as dire6i: fpeech, what the inquirers have no right to know, and would abufe to the worft purpofes, if they knew it; therein may be lawful to ufe fuch evafive anfwers as to a good unprejudiced mind, according to a juft interpretati- on, would not intimate any thing falfe, while yet we
* Chap. xvii. of this book.
E 2
Sbrerity to hi ncukatcdonaU.
^5 0//rDuTY in tbeUfeofS?EiE.c}ii
Boo'^ II forefee that others will interpret the words another way, and be deceived by them, through their own te- merity, or injuft prejudices. Of fuch fpeeches and an- fwers there are inftances in fome of the moll facred chara6i:ers. '^
3. An habit of fmcerity fo naturally attends and af- fifts a virtuous difpofition, and a contrary one is fo pernicious, that all difTimulation and difguifes, as well as dire6l falihood, fliould be feverely reftrained in the youno-; nor ought they before the full ufe of reafon to be allowed in fuch arts of concealment as a good man in mature years may fometimes juftly ufe.
4. There are fome tenets of piety and virtue of uons honourable f^^Yi high dlgulty, and a good mind mufl: have fuch an };;'; ""' "' ' ardour to own and divulge them, that one is j uftified in
openly declaring them at all hazards to himfclf, even when he has no profpec^s that others fhall be brought into the fame fentimentsby thefc declarations. And wherever there is juft ground of hope that fuch decla- rations fliall do more good to the pubhck by enlighte- ning the minds of others, than what over-ballances all our own fufferings we forefee, there we are obliged to fuch declarations and cannot innocently decline them: as when God has promifed fuccefs by thefe means to a virtuous caufe, or an inftitution moft beneficial to mankind. And yet, on the other hand, where there is no rational hope of fuccefs, or of having any good
when iechra-
* Piato de Repuh. 1. iii. feems to allow deception to be one of thofc powerful me- di.ines which none but the skilful ilate-
phyfjcian fiiould ufe, and that too only orv extraordinary occaGons.
The Jiri^ clVt- )ii on -wit-
Our Duty in the Ufe (^/'Speech. 37
Influence on others, one cannot be faid to be criminal Chap. 10 in omitting fiich voluntary declarations as can have ^^^^'^'^^ no other effe6l than his ownfufFerings.
5. As one moft important end of civil power is the taking the declfion of controverfies, and the executi- J,- on of juftice, out of the hands of the intereiled and""^'- paifionate parties, and committing it to unbyafTed men of wifdom interefled on neither fide ; and to this all the fubjecls of a ftate have implicitly confented: 'tis the duty of a perfon cited as a witnefs in judgment, not only to maintain the ftricleft veracity in v/hat xie affirms, but to difcover fully what he knows in the caufe when required. And 'tis necefTary in all ftates that fevere punilliments be inflicled on fuch witnefTes
as even conceal any thing required, out of pity, or fa- vour to one whofe caufe they think juft, or who has incurred the penalty of a law they may judge to be too fevere. Were witnefTes allowed with impunity to falfify, or to deny their knowledge of what they truly know, all civil judicatories would be ufelefs : the deci- fion of caufes mud remain in the hands of the impru- dent, or fuch as are intereiled one way or another, as the witnefTes generally are, by favour, or pity at leaft. If laws, or judges are too fevere, orunjuft, one would acl the heroick part who rather than contribute to the fufFerings of the innocent would refufe to give tefti- mony, and fubmit to any penalty of refufing it, when ,^ thus he could obtain fafety to the perfon in danger.
6. As in addrelTing fpeech to others who have a T^-=^^rmer,fe.
♦ 1 1 — . . . quivocatlia. and
right to know cur lentimentSj we do not merely pro-«c«/.>/ re/^rva-
tuns.
^8 Our Duty in the Ufe o/'Speech.
Book II. fefs that the words fliall In fome pofTible interpretati- y^jT^r^J on be true, but that they fliall impart the truth in the ordinary acceptation in which a wife man would take them : fince one might as well change all the fignifica- tions of words, and make a new didionary, according to which he might affirm or deny any thing, as make a new grammar, or way of conftru6lion unknown and unexpected by others. Both pra6lices would de- flroy all ufe of fpeech : fo , for the fame reafon, 'tis plainly unlawful to fpeak what in the terms exprefled is falfe, tho' a fecret refervation or addition would make the propofition true. No fentence is fo falfe or abfurd that it cannot, in this manner, be made true. V. The former rules are defiq-ned to keep men from
TraH'ical rules . rrinil 1 l
.fconvcrfation; thc cnmc of lallhood: but there are many others pom-
i'rat it be profit- . ii*1* 11 ' n
aUetoothm. Dug out thc Qutics, thc virtucs, and beauties or con- verfation, as fpeech may be the means of great good in human life. An honefl: heart pofTefTed with kind affeclions to its fellows will incline to employ his con- verfation for their fervice as much as he can: fuch a one will defire ufeful knowledge in human affairs as a fund of good offices; his ferious difcourfes will be inftruclive, or perfuafive to fomething honourable, and even his gayety will either be fubfervient to the fame purpofes, or at leaft innocent. And for thefe ends a winning courtefy in converfation, and even an agree- 0 able external behaviour,is not unworthy of die regards of the higheft charadlers. Kot cahmni- 2. As all mcu have a tender fenfe of honour and
tus, this exceed- . ii /^ f ' r i
\v^ij crimhau rcputation, and the utmolt avernon to mr.amy, and
AP. I O.
Our Duty m the Ufe ^Speech. ?q
the contempt of their fellows ; as being efteemed and Ch beloved by our neighbours is one of the fweetefl: en- joyments of this life, and fuffering reproach, and in- famy, and contempt, is among the hittercH atihcH- ons to the fineft fpirits; all difpofitions of humanity, all our moral notions of juftice recommend to men the greateft caution about the characters of others. We may indeed look upon ourfelves as at fome liberty as to the meafure in conferring praifes or honours on men for any eminent virtues or fervices which happen to be afcribed to them. And yet even in this matter, a low envious poor fpirit may be evidenced by denyino- the juft praife to eminent merit, or by detracting from it, and ftudioufly diminifhing its importance ; and fuch pradlices difcourage all generous difpofitions. Yet ftill each one is fome way judge for himfelf as to the degree of eminent praifes he will confer; and the right of others in this matter is only of the imperfedt kind, tho' in men's judging wrong, and violating fuch rights, they often difcover a mofl odious difpofition. But as to the limple character of integrity, honefly, and pu- rity of manners, or the reputation of a good honed: man, every one has a perfect right to it, unlefs he has. forfeited it by grofly imm.oral a6tions. Unjuft calum- ny and detraction therefore mufl: be among the moft grievous injuries: and the more odious that they can often be executed by hints, infmuations, fhrugs, whif- pers in the dark.
Such as have any regard to virtue, to the goodnefs of their own hearts, or any moral worth, Ihould the
^Q Our Duty in the Ufe of S?EECK.
BooKlI.i^ore carefully obferve the firfl: inclinations to fuch v./V"VJ wickednefs, and confider how bafe the roots are from which it fprings. At beft from want of all exami- nation at home, and a vain humour of talking about and intermedling with other people's affairs ; often from pride, and a mean delight in our own imagined fuperiority in virtue : often from a bafer envy, when others are like to excel ourfelves ; and fome times from an habitual fort of malice toward fuch as feem to vye with us in happinefs, in wealth, in knowledge, or in popularity; or who have oppofed any of our defigns. Seldom are men led into fuch pracflices by any of the lovely difpofitions of the heart even of a narrower kind ; and all the generous and humane principles mufl make us abhor them. Secret faults of 3. Nay fuppofc we are well affured of the fecrec tvuig'^! " ^'faults or vices of others, it fcldom can do good to di- vulge them. The reftraint of Ihame, which is fo power- ful in life, is taken away when a chara6ler is loft. Pub- lick infamy may be too cruel a punifhment to fuch as a private admonition might reform, who perhaps arc already fmcerely penitent, and repairing all wrongs as far as they can. Suppofe a private admonition does not reform the offender, yet if the action can continue fecret, and there be no fear of further injuries, or that others Ihall be feduced, 'tis hard to tell what is the advantage of publifliing fecret crimes. When there is hope that publick cenfure may reform where private admonition prove ineifedlual ; where 'tis necef- fary to prevent future crimes, or the feduftion of o-
p. 10.
Our Duty in the U/e of Speech, 41
thers; or to obtain reparation of damage, then It isCHA prudent and juft. But where thefe motives do not re- commend it; where the fecrecy can prevent the hurt of the example; where damages are repaired, and no new injuries apprehended; what can the divulging of faults do except gratifying our ill-nature, or pride, or envy, or vanity in our fuperior purity, or an idle in- clination to inconfiderate talking. The vicious are ea- fieft reclaimed while the reflraint of fhame remains ; which is loft by publick infamy : the frequency of crimes makes them appear lefs iliameful to others ; their vicious inclinations are lefs reftrained when they find that many indulge them, and the virtuous be- come more fufpe6ted of hypocrify.
When indeed the grofs vices of men are publick, *tls the duty of every fociety to declare their diflike of . them ; and yet to retain good-will toward the offen- ders, and endeavour to reclaim them. But while vice can be concealed, a good friend, or neighbour, has the beft opportunity of the kindeft office to the of- fender, whom he may reclaim by admonition, and oblige in thehighefl: manner by concealing his faults.
4. One of the moft amiable and ufeful offices of ^^'^^i^^^a life comes in on this fubjecl:, the reconciling £nends,fiiL!'' ""^"^* or neighbours, who are at variance, by free converfa- tion with both fides, reprefenting the matters of of- fence in the moft favourable lights, fuggefting all ex- tenuations, recalling paft kindnefles, and prcfenting the great motives we all have to mutual forgivenefs,
Vol. II, F
, 2 Our Duty in the life qf5?EECK,
Book II. fi^cc all of US need fo often the mercy of God, and
y^XV^^ the indulgence of good men.
5. Under this head of the ufe of fpeech comes like- wife in the old logical and moral debate between the Cynicks and the other feds of antient philofophy, a- bout obfcenity. The Cynicks allege that" there is no '' work of God, no natural adion, which may not be *' matter of inquiry and converfation to good men,and *' we mufl: ufe their names ; hence, they conclude there *' is no obfcenity." The anfwer to this is obvious. Tie nature and Mauy words In every language, befide their prima-
crimeofobpr.i-^ fignificatiou of fomc obje6t or a6lion, carry along additional ideas of fome affections in the fpeaker; other words of the fame primary meaning may have the additional fignification of contrary affections ; and a third fet of words may barely denote the objecft or ac- tion, without intimating any affection of the fpeaker. We Ihall find this difference in comparing the terms of contempt and indignation one ufes when provok- ed, with thofe of the fame primary meaning ufed by a calm man relating the fame event. Few objedts want thefe three forts of names, one barely denot- ing it, another fort denoting alfo our joy or approba- tion, or our relifh for it, and a third denoting our averfion or contempt of it. Adultery, incefi, fornica- tion, leivdnefs, denote thefe vices, and the dillike and condemnation of the fpeaker : other terms for the fame actions may denote our liking them,and our lewd inclinations : a ferious mournful account of any battle
Our Duty in the life ^Speech. 43
or unhappy riot has its grave words importing alfoCnAP. 10. pity and regret : a burlefque poem has its ludicrous words for the fame things, importing our indifference and contempt of them. A chirurgeon ufes middle words, importing no paiTion of either kind.
An anatomift, or any modeft man, can find words denoting any parts of the body, or any natural actions, or inclinations, without exprefTing any lewd difpofi- tions, or any reliih for vicious pleafures. In fuch words there is no obfcenity. Other words may import an immoderate keennefs for fuch pleafures, a diffolute- nefs of mind, a want of the natural modefty, a negle^l: of all the fober reftridlions on our brutal appetites, and a recommendation of a difTolute condu6i: to o- thers. Thefe are the obfcenities of converfation un- worthy of a rational being, and oppofite to the mo- defty of our nature, as well as all the manly principles of virtue.
In immoderate fenfual enjoym^ents of other forts there is vice ; and a bafe defpicable foul may be difco- vered by great delicacy and concern about them. Con- verfation exprefTmg fuch a low tafte, or recommend- ing it, may alfo be fhamefully vicious. But as the a- morous appetite is generally more violent, there is a fenfe of Ihame peculiarly fitted to reflrain it ; the breaking through this jftrong reftraint of modefty, by our converfation, is generally more infectious and cor- rupting to others, who have not got a finer tafte to make it wholly naufeous, than mean converfation a- bout other forts of fenfuality,
F 2
o
The nature of
44
Book IT.
CHAP. XL
Concerning Oaths ajid Vows.
^Aths fall under confideration here, as they are natural confirmations of promifes, and teftimo- ny or narration.
I. As nothing can have greater influence on one Oaths, -^ho believes a righteous providence rewarding the good, and punifhing the evil, to engage him to truth in narrations , and faith in contrads , than " a fo- ** lemn invocation of God as the witnefs and avenger *^ of falfhood," fuch confirmations have been required CO matters of greater importance in all nations, and are called oaths. And when devoutly taken, they are natural acknowledgements of the Divine Perfc6liono and Providence. We do not either make the Deity more attentive, or give him any new right of punifli- ing. But by fuch invocation we prefent to our own minds the ftrongeft motives to veracity and fidelity, and exceedingly increafe the guilt of falihood or in- fidelity. Their ftrong As all tlic moral feelings of the heart muft enjoin fa»lTou'i2u- upon all rational creatures who know their Creator, '''' the deepeft reverence, admiration, gratitude, and love
toward him, fo 'tis of the highefl: importance to influ- ence men to every thing great and honourable in foci- al life, and to deter them from the contrary, that fuch devout afFeftions toward God fliould univerfally pre-
The Nature o/' Oaths (ind Vows. 45
vail. And therefore whatever pracflice tends to abate Chap, i i. this awful reverence of the Divine Majefty, mufl be ^^^^VXJ extremely criminal. Such plainly is the interpofmg of oaths in trifling or ludicrous fubjedls; the injfifting on them without great necefTity even in ferious matters which often occur: the requiring them frequently where we could have fufficient fecurity without them, and where there are flrong temptations upon men to perjury, with a probable profpe6l of impunity: or the adminiftring them in a carelefs manner which neither evidences any devout difpofitions in fuch as enjoin them, nor is apt to raife them in the perfon who fwears, or in the fpecSlators. Such pradlices mufl: naturally a- bate the devotion of a nation in all its parts, and par- ticularly as to the fenfe of obligation in that moil fa- cred bond of an oath. What folly is it in princes to expe6l that men fhall be bound by oaths of a,llegir ance to themfelves, when they fo little regard the pre- ' ferving among their people an univerfal reverence for oaths } Nay when by foolifli and unneceffary oaths, every day impofed and irreverently adminiflered, they are debauching the confciences of their fubjecls, and abating more and more any fmall remains of religion and integrity among them.
'Tis a monflrous abufe too to employ oaths where they can give little or no fecurity. Such are thofe required in declaring our aiTent to long fyftems of dif- putable and fometimes unneceffary opinions in mat- ters of religion and promifmg to adhere to them. Not to mention the great hazard of debauching the con-
^5 The Nature of Oaths and Vows.
BookH. fciences of men by prevarication about their prefent cy'W^fenciments; whenfoever by further inquiiy they fee eround to chan2:e their fentlments, fuch oaths are no fecurity; as they were confirmations of promifes now become impoifible to be fulfilled. Nor indeed can oaths of allegiance have much farther efFe6i:. Men of no con- fcience are not bound by them. Men of virtue would be loyal to their lawful prince without them. If a good man after fwearing allegiance fhould find caufe to change his opinion as to the right of the prince in pof- fcfllon, he will conclude too that he is not bound by the oath, fmce it was contrary to the right of another. Oath only hy U' ^^ 'tis a foollfh and profane adion to fwear by the Ddtj. rj^^y being who is not believed to be poffcfTed of divine power, forms commonly received, if they have any meaning, are metonymical oaths by God. Swearing by one's life, by his head, or by one dear to him, is in- voking the Divine vengeance upon them in cafe of falfhood. Swearing by the fun, the light, or the earth, is imprecating that we may be deprived of all ufe of them. Other metonymies are more obvious. Ufing any of thefe forms in trifling matters is either foolifh, if we do not know the meaning of them, or very pro- fane if we do. None of them Ihould be ufed in com- mon converfation *, nor even without a real intenti- on to incur the obligation of an oath. mo Is deemed As lu covcnauts, fo in oaths, he is deemed to have
to fwear.
* This is plainly the intention of \ (Ian. That this fentence is thus elllptick» Mcitlh. V. 32. Tiiat we Ihould ufe none appears from the context, and tiic Jewilb of thofe forms 'v:itkout intention of ohliga- \ cafuiftry Matth, xxiii. 20.
Oaths a diJliiiR acl. '
The Nature o/Oatus and Vows. 47
confented, or fworn, who ufed the figns which com- Chap. h. monly denote fuch a(51ions, and profeffed to ufe them as confenting or fwearing, howfoever his mind was fe- cretly employed at fuch times. And he is punifhable for perjury if he falfifies in teftimony, or breaks the promife fo confirmed. Men can judge of our inward actions only by the figns.
The oath is properly a diftincl act from the profef- fion or promife, tho' it may be involved in the fame grammatical fentence by fome elliptick form. The oath is the invocation of God as the witnefs and a- venger of falinood, in fome promife or affertion pre- fuppofed. It therefore neither increafes nor alters the matter of obligation, but confirms what was previouf- ly conftituted. By it we imprecate vengeance upon our neglect of our duty. A contract therefore which is void becaufe of the fraud of a party, or by any error about the effentials of it, or by defect of fome valid condi- tion, tho' it was confirmed by an oath, is not thereby made obligatory, nor is anyjuft exception precluded. Having invoked punilhm.ent upon our failing in our duty, has no effecT: v/hen we do nothing contrary to our duty.
III. An oath cannot bind us to what is directly impious toward God, or contrary to the perfe6t right ^VL^T;J. '^ of another; or to what is fpecially prohibited by a law excluding our moral powxr of tranfacting in thofe matters. Could oaths bind us in fuch cafes, they would be the mofl pernicious engines of evading every obli- gation to God, or man; and of deilroying all the rights
^8 The Nature o/' Oaths and Vows.
Book II. of Others. The invoking of God as a wicnefs and a- venger, can never move him to puniHi us for omitting any impiety, or injuftice: but in the natural matters of commerce committed to human prudence, tho'we have con traded rafhly, and offended in doing fo a- gainft fome general laws, we are obliged, as was fhown above J and much more when the deed is confirmed by an oath. 'Tis in fuch matters that a good man changeth not -when he has [worn to his own hurt.
In a promifTary oath there is no obligation with- out the acceptance of him in whofe favour it is made, or if after acceptance he voluntarily remits his right, or when any third perfon without whofe confent we cannot tranfa6l in fuch matters denies his confent. Where we have deceived others by ading as if we had full moral power in fuch cafes, we are obliged at lead to compenfate the damage.
When one iuftlv demands of us an oath we Ihould i^either fwear m the fenfe he requires us, or not fwear
•words ho'tu to taken.
at all. In oaths required by private perfons we may always know their fenfe : in thofe required by law we muft fwear in the fenfe of the legillator, or decline them altogether. No deputy magiftrate, or court, has the powxr of explaining them. 'Tis exceedingly per- nicious to enjoin oaths conceived in ambiguous terms, or fuch as cannot eafily be underftood by all on whom they are enjoined. ytfertory, and i\T Bcfidc thc gcucral dlvifion of oaths into jpro- 77ii[fary and ajfertory, there are feveral fub-divifions. Allertory oaths demanded from witnefles under a pe-
The Nature of Oaths and Vows. 4p
nalty, are called necejjary. When one of the contend- Cii a p . 1 1 . ing parties, with confcnt of the judge, leaves the '^■^^'^'^'^^ caufe to the oath of the other, 'tis called a judicial oath. When the fame is done without order of a judge, by mutual confent, 'tis called a voluntary oath. When it is enjoined on the party accufed in a criminal action, in which he is to be abfolved upon fwearing to his innocence, 'tis called 2i purgatory oath. When the oath is demanded only that the perfon accufed may difcover his crime, or be deemed guilty upon his declining to fwear, it is called expletory, as it compleats an imperfe6l proof. But where one's life or charafler is at ftake, the temptation to perjury is fo ftrong with thofe who are guilty, and it is fo little neceffary for any publick good to punilh a man of fuch integrity, as will not fwear fallly to fave his life or character, for a crime perhaps done in a tranfient pafhon, that the humane laws of fome ftates have juilly excluded all purgatory or expletory oaths in criminal matters; fmce by them the impious are not deteded, and only fuch can fuffer as have a pretty ftrong fenfe of piety. 'Tis certainly better that either dire6l teftimony, or concurring circumftances, fhould be made the fole methods of convicting any man.
It were to be wilhed that in matters of property too we could avoid obliging men to fwear in their own caufes. In civil a6i:ions the magiftrate does not require the oaths for the fake of any publick right of the ftate, but as the fole means of deciding juftly be- tween the parties. And the temptation to perjury in
Vol. II. G
r o T/:e Natl/ re ofVo-\vs,
Book II. thcfe cafes IS not generally fo great as in criminal ac-
^./"VX^ tions, and it can be more eafily detecfled.
Tk- nature of V. A VOW is an oath in which men are not con- '"""^' firming any conveyance of right properly and imme- diately to their fellows, or any contract with them; but 'tis ^^ a promife made to Cod, binding us to fome '' performance, and an invocation of divine puniih- '^ ment if we omit it." By vows we convey no right to men in the matters of commerce ; we oblige our- felves only to God, thir ufi. When men vow what is truly wife, and prudent, and pious and charitable, the omiihon of fuch offices be- comes more criminal after the vow ; and thus by vows men may have deeper imprefTions made of their obli- gations to what is good and honourable; and may cre- ate in themfelves a more firm abhorrence of what is evil, or of any negligence in their duty: and this is the proper ufe of vows, to confirm every good and wife refolution by folemn engagements in the prefence of God.
h-v far oiuga- I . But firft, wliat wc could not bind ourfelves to by '"^" a contract, we cannot be bound to by vows ; fuch as actions impious toward God, or contrary to the perfedl right of another, or contrary to any fpecial precept depriving us of the moral power of contracting in fuch matters.
2. Again, we may be further obliged by contrac1:s, than we can by vows. When we contract imprudently with men in matters of commerce, a2:ainfl: thofe ee- neral laws which require a wife adminiftration of our
:>
II.
The Nature of Vows, q i
affairs for the benefit of our families and friends, and Chap. the other party infifts upon the contract; a regard to a diftant good, and the necefTity of maintaining the faith of commerce, and of excluding vexatious fuits, and endlefs evafions, obliges us to obferve what we have engaged. But when one makes an imprudent vow to God J we are fure God does not accept of it, or infill on our performing it: nor is there any fuch reafons as thofe from the necelTity of maintaining commerce, to oblige us to it. Thus fliould the pa- rent of a numerous family, in any danger, vow to give the half of his goods to the poor, or to certain orders called religious, or for building or adorning certain edifices ; or fhould he undertake ufelefs penances ; while all the indigent are fufficiently provided other- ways, or might be fo by a far fmaller proportion of the goods of the wealthy; while all ufeful orders of men have-fufficient fupport, and there are fufficient buildings and utenfils for all religious ufes ; and while the penances vowed are no way ufeful for his improve- ment in virtue; he is under no obligation, as God cannot be fuppofed to accept of fuch promifcs ; and there's no conveyance made of any rights to men.
'Tis impious to conceive God, like the worft of our Foonji, o,- ;>;.-;/ fellows, catchino; at all advantaQ:es from the fears or '",'"'"''' ''' "" weaknefs of men, and infilHng on every ralh promife of theirs ; or like a tricking agent for a party, to the detriment of the reft of his rational creatures, and to that of thefe very orders of men, by corrupting them in luxury and lazy opulence : much lefs can we ima-
G 2
c 2 The Nature ofV o^vs.
Book II. Cjinc him fond of fplcndid ftruclures and furnicure, to 'the opprcfTion of his own living temples. All fuch foolilli vows made upon any falfe notions of fanclicy in certain orders, or of piety in enriching them to the oppreiTion and enflaving the reft, or of fome promo- tion of religion by fuch means as do not conduce to it, are entirely void: and as foon as we come to jufter notions, we may conclude we are free from their obli- o-ation. What we have fuperftitioufly given under fuch miftakes about the true nature of thefe fubjeds, we have a right to redemand; as in other contra6ls where we have erred in what was efTential to them. And in thefe caufes we generally have a juft excep- tion founded upon the fraud ufed by thofe who re- ally get the ufe of what is thus given to fuperftitious purpofcs.
'Tis ftill more evident that vows proceeding from wrath, ill-nature, or envy, or any vicious or immode- rate paffion contrary to the ties of humanity, fuch as thofe '' never to forgive, or be reconciled, or hold any '' converfation with fuch as have offended us," cannot obhgc ; but muft be offenfive to Cod, and difapproved by good men. We ought to repent of our ill-na- ture and impiety, and not perfift in it by obferving the wicked vow. Voavs therefore produce no new matter of obhgation, nor make that to be our duty which was not juft and wife, and becoming us, before we vowed ; but like oaths, they make a deeper fenfc of our obligation to what was our duty before. To vio- late any juft engagement; or any contract confirmed
The Value of Goods and of Coin. r-)
by fuch invocation of God, mull: evidence the moftcnAP. n. horrible impiety, and mufl be infamous in the high-v,/W>/
eft degree.
CHAP. XII.
The Values of Goods in Commerce and the Nature
of Con<!,
I. TN commerce it muft often happen that one mar
■^ need luch goods or mine as yield a great and/^'"''^ f^'- ^n lafting ufe in life, and have coft a long courfe of la-"'" '"'''* bour to acquire and cultivate, while yet he has none of thofe goods I want in exchange, or not fufficient quan- tities; or what goods of his I want, may be fuch as yield but a fmall ufe, and are procurable by little la- bour. In fuch cafes it cannot be expected that I fliould exchange with him. I muft fearch for others vfho have the goods I want, and fuch quantities of them as are equivalent in ufe to my goods, and require as much labour to procure them; and the goods on both fides muft be brought to fome eflimation or value.
The natural ground of all value or price is fome fort of ufe which goods afford in life; this is prere-/"»/>"^". quifite to all eftimation. But the prices or values in commerce do not at all follow the real ufe or impor- tance of goods for the fupport, or natural pleafure of life. By the wifdom and goodnefs of Providence there is fuch plenty of the means of fupport, and of natural pleafures, that their prices are much lower than of many other things wlaich to a wife man feem of little
i^A The Value of Goods and o/Coin.
Book II. ufc. Buc when fome aptitude to human ufe is prefup- pofed, we fliall find that the prices of goods depend on thefe two jointly, the de?narid on account of fome ufe or other which many defire, and the difficulty of acqui- ring, or cultivating for human ufe. When goods are equal in thefe refpe6ls men are willing to interchange them with each other; nor can any artifice or policy make the values of goods depend on any thing elfe. When there is no demand, there is no price, were the difficulty of acquiring never fo great: and were there no difficulty or labour requifite to acquire, the moft univcrfal demand will not caufe a price ; as we fee In frelh water in thefe climates. W here the demand for two forts of goods is equal, the prices are as the dif- ficulty. Where thedifiiculty is equal, the prices are as the demand.
By the ufe caufing a demand we mean not only a natural fubferviency to our fupport, or to fome natu- ral pleafure, but any tendency to give any fatisfacti- on, by prevailing cuftom or fancy, as a matter of or- nament or difliincftion in the more eminent ftations; for this will caufe a demand as well as natural ufe. In like manner by difficulty of acquiring, we do not only mean great labour or toil, but all other circum- ftances which prevent a great plenty of the goods or performances demanded. Thus the price is encreafed by the rarity or fcarcity of the materials in nature, or fuch accidents as prevent plentiful crops of certain fruits of the earth; and the great ingenuity and nice tafle requifite in the artiils to finiih well fome works
The Value of Goods and of Coin. 55
of art, as men of fiich genius are rare. The value is Chap. 12. alforaifed, by the dignity of ftation in which, accor- v./'VXJ ding to the cuftom of a country, the men muft Hve who provide us with certain goods, or works of art. Fewer can be fupported in fuch ftations than in the meaner; and the dignity and expence of their ftations muft be fupported by the higher prices of their goods or fervices. Some other * fmgular confiderations may exceedingly heighten the values of goods to fome men, which will not affect their eftimationwith others. Thefe above mentioned are the chief which obtain in commerce.
II. In fettling the values of goods for commerce, a con,r,:^»n they muft be reduced to fome common meafure on^^^"'"'^'"" both fides. Such as '' equal to the value of fo many ^' days labour, or to fuch quantities of grain, or to *^ fo many cattle of fuch a fpecies, to fuch a meafure *' or weight of certain fruits of the earth, to fuch '^ weights of certain metals." The ftandard or com- mon meafure would readily be taken in fomethino- of very common ufe for which there would be a general demand: and in fixing upon it different nations would according to their prudence or circumftances choofe different materials.
The qualities requifite to the moft perfe6i: ftandard e//.///;r>^ n-j«;. are thefe; it muft be fomething generally defired fo'^" that men are generally willing to take it in exchange. The very making any goods the ftandard will of itfelf give them this quality. It muft be portable ; which will
* Prctlian ajjcfi bills.
rue to it.
rS The Value of Goods and of Coin.
Book II. ofcen be the cafe if it is rare, fo that fmall quantities are of great value. It mull be divifible without lofs into fmall parts, fo as to be fuited to the values of all forts of goods ; and it muft be durable, not eafdy wea- ring by ufe, or periibing in its nature. One or other of thefe prerequifites in the ftandard, fliews the incon- venience of many of our commoneft goods for that purpofe. The man who wants a fmall quantity of my corn will not give me a work-beaft for it, and his beaft does not admit divifion. I want perhaps a pair of flioes, but my ox is of far greater value, and the other may not need him. I mud travel to diftant lands, my grain cannot be carried along for my fup- port, without unfufferable expence, and my wine would perifh in the carriage. 'Tis plain therefore that when men found any ufe for the rarer metals, filver and gold, in ornaments or utenfds, and thus a de- mand was raifed for them, they would foon alfo fee that they were the fitteft ftandards for commerce, on all the accounts above-mentioned. They are rare, and therefore a fmall quantity of them cafily portable is equivalent to large quantities of other goods; they admit any divifions without lofs ; they are neither pe- rifliable, nor eafily worn away by ufe. They are ac- cordingly made ftandards in all civilized nations. Metals hy Mctals havc firft been ufed as ftandards by quan- ^"^^'' tity or weight, v/ithout coinage. This we fee in an- tient hiftories, and in the * phrafes of old languages. But this way was attended with two inconveniencies;
* Impajdere^ e'xpendere nimviaSf Sec.
The Value of Goods and of Coin. 57
one the trouble of making exa(5l divifions, the other Ch a p. ir. the uncertainty as to the purity of the metal. ToO^VN^ prevent both, coinage has been introduced; in which pieces are made of very different well known fizes in the moft convenient divifions: the quantity of pure metal in every piece is known; and finer methods of ftamping fecure us that they cannot be dipt or filed away without its being difcernible at once. The pub- lick faith of the ftate is interpofed by thefe ftamps, both for the quantity and purity, fo that there is no occafion for allays or weighing, or making divifions.
Thefe are the fole purpofes of coinage. No flamp ^^ ,,yj ^^^^..^ can add any confiderable value, as it is eafy workman- ''^'' fhip in fuch valuable materials. But it may be good evidence for the value, when it is impreffed by any juft and wife authority. Trading nations cannot make the comparative value of their coin with refpecl to o- ther goods, greater or lefs than the value of the me- tal, and of the eafy worknianfhip of coinage. Coin is .ever valued as a commodity in commerce, as well as other goods ; and that in proportion to the rarity of the metal, for the demand is univerfal. A law can on- ly fix or alter the legal denominations of pieces or ounces ; and thus indeed affe6l, within the flate, the legal claims formerly conftitutcd in thofe denomina- tions : but commerce will alw^ays follow the natural value. If one ftate had all the mines in the world in its power, then by circulating fmall quantities, it could .make the values of thefe metals and coins high in rc- fpe6l of other goods ; and by circulating more of
Vol. II. H
r8 The Value of Goods and of Coin.
Book II. them, it could make their values fall. We fay indeed V-/^V^^ commonly, that the rates of labour and goods have rifen fmce thefe metals grew plenty; and that the. rates of labour and goods were low when the metals were fcarce; conceiving the value of the metals as in- variable, becaufe the legal names of the pieces, the pounds, fliillings, or pence, continue to them always the fame till a law alters them. But a days digging or ploughing was as uneafy to a man a thoufand years ago as it is now, tho' he could not then get fo much filver for it : and a barrel of wheat, or beef, was then of the fame ufe to fjpport the human body, as it is now when it is exchanged for four times as much filver. Properly, the value of labour, grain, and cattle, are always pretty much the fame, as they afford the fame ufes in life, where no new inventions of tillage, or pafturage, caufe a greater quantity in proportion to the demand. 'Tis the metal chiefly that has under- gone the great change of value, lince thefe metals have been in greater plenty, the value of the coin is altered tho' it keeps the old names. ,, , r .. IV. The p-overnors of a ftate which has no mono-
Value of com not O
arbitrary, p^jy q^ filvcr and goM , may change the names of their coins, and cheat their fubj eels, or put them into a ftate of cheating each other in their legal demands : but in commerce coin will retain the natural value of the metal in it, with little variation. Where the legal denominations of value areconfiderably changed, the effedls are obvious at once ; and in fmaller changes the effeds are proportionable, tho' not fo fenfiblc.
quantity of mc-
The Value of Goods and of Coin, 5()
If the legal names of our crown pieces were doubled Chap. 12. fo that the ounce of filver were called ten fhillings, Ky^\'^^\j the nominal prices of all goods would rife as much. ^' ^'^'•«'^ ''-' We lliould not get the barrel of wheat for the new? ten (hillings, as we do now in cheap years: we muft give the two ounces of fdver as we do now, tho' they would be called twenty fhillings. Suppofe people fo ftupid that they were contented with the fame names, but half the filver. Coining with any ftamp is an ea- fy manufacfture, any nation could make our crown- pieces, and get for them double the quantity of our goods they got formerly. Our own merchant there- fore Q-ets for an ounce of filver from the farmer or manufadlurer what formerly coft two ounces, and yet at foreign mercats he will get as many ounces for thefe goods as before. Now he doubles his firft coft, befide his former profit. This vaft gain would invite fo many, and make fuch a demand, that the prices of all our goods would gradually rife, till they came to the fame quantities of gold and filver they were at before, but with double nominal values ; and then the new exorbitant gain would ftop. At firft our country would lofe one half upon all goods bought from us by foreigners : this lofs would fall upon men of eftates and manufa6lurers at laft.
As to foreign goods 'tis obvious the nominal prices of them muft rife at once upon changing the names of our coin. Forelo-ners who do not reo;ard our laws, or legal names of coin, muft have for their goods the fame pieces or ounces they got formerly. Our mer-
H 2
6o The Value of Goods and of Coin.
Book II. chants therefore In felling thefe goods muft have as o^VX^many pieces or ounces, which now bear a double name.
Again, upon lowering the legal names of coin, the nominal prices of all goods muft fall. The mer- chant cannot afford more pieces or ounces of metal, than he gave before for any goods to our farmer or manufacturer, as he will get no more at any foreign market, and this number now bears a fmaller name. Foreign goods are bought abroad for the fame oun- ces they were, and therefore the merchant can afford them here for the fame ounces he formerly fold them at, and with the fame profit, tho' the name be lefs. If one merchant refufes to fell fo, another will, as all can afford it : or if all refufe, foreigners will fend their goods into our country to be fold for iihe fame oun- ces, now bearing a lower name.
'Tis a fundamental maxim about coin, that " Its " value in commerce cannot be varied by names, '* that prices of goods keep their proportion to the quan- tities of metal, and not to the legal names. No man values a piece more that 'tis called twenty livres, or twenty Scots pounds, than he would have done on ac- count of the Sterling name. rhfff.asofu- V. The changing confiderably the legal names of gal changes. ^qJj-^ muft caufc innumerable wrongs among the fub- jeds of any ftate, fince the real values of goods con- tinue the fame. The lowering of coins wrongs all who are indebted in legal denominations; they muft pay more ounces of gold and filver than they received;,
The Value of Goods and of Coin. 6i
©r engaged for; and yet gee no more ounces by anyCuAP. 12. fales of their goods than they got formerly. All du-^^-^^V"^^ ties, taxes, rents, falaries payable in legal denomina- tions are increafed. More ounces are received by the creditors in fuch claims, and yet each ounce will pur- chafe as much goods for the fupport or pleafure of life as before the change. The debtors therefore are fo much wronged, andfo much the creditors areun- juftly enriched.
Raifmg the legal names has the like unjufl cffecl:? on the other fide. Debts, taxes, rents, falaries, fpeci- fied in legal names, can then be difcharged with few- er pieces or ounces; and yet the debtor gets as manyi ounces for any goods .he fells as before; and the cre- ditor can get no- more of the goods neceffary for life for an ounce than he got before. He is therefore fo much' wronged by the change made, in the legal names.
The putting difproportioned values upon the fcf- veral fpecies of current coin mufl have bad effe^ls on a country. The fpecies underrvalued at home v/ill be carried abroad, and the fpecies over-valued will h^ imported; as the former anfwers better at foreign markets, where the ounces ofmetal are regarded, and not the names, and the later anfwers beft at home. Whatever fums are thus exchanged by foreigners, all their gain is fo much lofs to oiu- country. What we export ourfelves, hurts our country only by introdu- cing perhaps a lefs convenient fpecies. This difpro- portion often arifes after the values were wifely fixed
^2 The Value o/" Goods and ofQom.
Book II. at the time they were made, if either the mines of <^/V^o one metal are more copious in proportion than thofe of the other; or there be a greater drain of one fort of metal by exportation, or by fome confumption of it in the fplcndour of life, wo-x' it changes Au. increafe of both metals by copious mines, na- 'r^Irc^"/^"turally abates the value of both, without any change ^''^'' of the names. And thus, properly fpeaking, the va-
lues of eold and fdver are fallen within thefe two cen- turies above one half : tho' we more commonly fay that the rates of goods are increafed. Were the mines quite drained and the quantities of thefe metals much diminiflied by the various ufes of them in plate, drefs, and furniture, their value would rife again; or, we would vulgarly fay, the rates of goods would fall. The ftandard itfelf is varying infenfibly: and there- fore if we would fettle fixed falaries, which in all e- vents would anfwer the fame purpofes of life, or fup- port thofe encituled to them in the fame condition with refpect to others, they fhould neither be fixed in the le2:al names of coin, nor in a certain number of ounces of gold or filver. A decree of ftate may change the legal names ; and the value of the ounces may alter by the increafe or decreafe of the quanti- ties of thefe metals. Nor fhould fuch falaries be fix- ed in any quantities of more ingenious manufa61ures, for nice contrivances to facilitate labour, may lower the value of fuch goods. The moft invariable falary would be fo many days labour of men, or a fixed quan- tity of goods produced by the plain inartificial la-
The Value of Goods and of Coin. ■ 6>
hours, fuch goods as anfwer the ordinary purpofes of Chap. 12. life. Quantities of grain come neareft to fuch a*-^'"'^''^^ ftandard.
In matters of commerce to fix the price we fhould9«w.r/^.^n- not only compute the firft coft, freights, duties, and 1/ ^'"'^ ''" all expences made, along with the intereft of money employed in trade, but the labours too, the care, at- tention, accounts, and correfpondence about them ; and in fome cafes take in alfo the condition of the perfon fo employed, according to the cuftom of our country. The expence of his ftation of life muft be defrayed by the price of fuch labours ; and they de- ferve compenfation as much as any other. This addi- tional price of their labours is the juft foundation of the ordinary profit of merchants, on which account they juftly demand an higher price in feUing, than what anfwers all that was expended upon the goods. Their value here is augmented by thofe labours, a:k juftly as by thofe of farmers or artifans.
As there are many contingent loffes by the perifh-c.,;/,^./ p,. ing of fome goods, or their receiving damage, thefc^ lofTes may be juflly compenfated by a further aug- mentation of the price of fuch as are fafe. As mer- chants lofe fometimes by the falHng of the rates of goods on hand, they may juflly take the contingent advantage too of goods on hand, when the rates of fuch goods rife by any accident which makes them fcarce. Men who are fortunate in thefe accidents may be much enriched, without any fraud, or extortion. The conftant profit is the juft reward of their la-
fiii in cotr.mirce.
5/ Concernhig the ordinary Contracts.
BooKlI.bours. Thus tho' the values of what is given andre- vyvxjceived in buying and fclHng fliould ftill be kept equal on both fides, as we fliall fee prefently, yet there is a natural gain in trade, viz. that additional price which the labour and attendance of the trader adds to the goods ; and a contingent one, by the rifing of prices.
CHAP. XIII.
The Trindpal Contracts hi a Social Life.
^ , , /'^ On TRACTS are either beneficent, where a Q;ratul- ccutoror.cmiu V>< tous favour IS proreiiediy done on one hae; or onerous, where men profefs to give mutually equal va- lues. Of the former there are three forts known to the Civilians, the inandattmi, commodatum and depoji- ^iiim ; of which in order. ^ rz'.'mandatum. The mandotuni is when " one contrafts to manage " the bufinefs of another without reward." This may be either with fpecial inftruffions, or without them. In the former cafe, if the perfon employed departs from his inftructions, he naturally feems liable to all dama- ges occafioned by it, except he has donefo upon fuch very fpecious reafons as might miflead a wife man zea- lous to do the bcfl for his friend. In the other cafe, he is bound to fuch diligence and care as a wife man ufes in like affairs of his own, and is only liable to com- penfate fuch damages as enfue upon a defe6l of this di- ligence. This is all that the obliging friend can be
• There are other gratuitous contra(5ls not included under any of thefe three, butthcy cotnC' under much the fame rules, fuch as loan for confumption without intcicll.
Concerning the ordinary Contracts. d^
prefumed to have bound himfelf to, unlefs he has cx-Chap. 13. prefly undertaken for the very utmoft diligence and^^'V^-^ care, or the fingular nature of the bufinefs plainly re- quired it; and then indeed he is anfwerable for every overfight, or neglect, which would not have been inci- dent to the very beft of men. We are not to lay fe- verer burdens on the beneficent party than they con- fented to, or to make kind offices perilous to the un- dertaker, without the higheil: and clearefl: reafons. Nor yet ihould men on the other hand undertake the bufinefs of their friends without hearty purpofes of executing them carefully; fince by doing fo they may have prevented their employing fome better hands. The * perfon employed, is bound to account to the * employer when the bufinefs is finiflied : and to f re- ftore his goods with their profits. And the employer is J bound to indemnify his friend as to all loiTes or expences fufi:ained in his fervice. The favour underta- ken was to employ his labour and care gratuitouOy, and no more, from the ordinary nature of this contract.
II. Commodatiim is '' the loan for ufe without any r/;^/,^^ /fry/?, ^^ price or hire, where the fame individual goods are *^ to be returned." If a price or hire is given, the con- tract is not beneficent, it goes by another name, loca- tion, or fetting to hire. \. When the fame individual
* The mandatarius and * mandator,
f This is demanded in the actio direfla viandati.
X This is demanded in the a^io con- traria.
■[ Mtiiuum verfatur in rebus fungibilihus, quae ri'ddendae funt in gcnere^ non iufpecis.
Vol. II. I
"^^^ genus they mean what modern logicians Q.2Afpecies^ equnl quantities, weights, mea- fures of goods of the fame liind : hy fpccies, the Civilians mean the fame individual. In- Jiit. I. iii. tit. 15. In this fenfe the claffic authors too ufc thefe words.
//•a?.
(^(y Concerning the ordinary Contracts.
Book II. IS HOC to be returned, but equal quantities or mea- v^y-v*\jfures, and this without price or intereft, the contra(5l is much of the fame moral nature, but the Civilians call ic ?niifinnn g^ratintum, or the gratuitous loan for eonfumption. If this loan for confumption be for a certain price befide the reftitution of equal quanti- ties, 'tis called lending for intereft. jLjru-. /*;.:.«- In the gratuitous loan for ufe, the favour is done CO the borrower. He is therefore certainly bound i . to as high care of the goods as any wife man would ufe about fuch goods of his own, or rather to greater, out of eratitude. A o:ood heart muft recoil at fufFe- ring any friend to lofe by his kindnefs. The lender expe6ls this care, and we are juftly deemed to have bound ourfelves to it. 2. The borrower is bound to apply the goods to no other purpofes than thofe for whichthey were lent: other conducSl is perfidious and ungrateful. And, 3. He muft reftore them at the time agreed, in as pood order as he received them, excepting the natural wear of fuch goods, by the pru- dent ufe allowed. In demanding nothing for the im- pairing of the goods by this ufe, confifts the favour of the contra6l. 4. If the proprietor needs his own goods before the term of loan is expired, humanity and gratitude oblige the borrower to reftore them, unlefshe is in fome extraordinary ftrait himfelf, much beyond that of the lender. But this cannot be matter of compulfion, except in very fmgular cafes of necef- fity. When the urgent occafions of the borrower hinder him to reftore before his time of loan expires
lAP. I
Concerning the ordinary Contracts.
as he Is bound in gratitude, he muft think himfelfcH. obUged, to compenfate any damage the lender fuf- tains by his kindnefs to him. An honeft heart can- not avoid this duty, tho' he cannot be compelled to reftore the goods fooner. Could he be compelled, he
mightfometimes be greatly difappointed;rmceperhaps trufting to this loan, he has omitted providing himfelf -otherways when he could have done it, whereas now the opportunity may be gone.
If goods lent, perifh by fuch an accident as had t^. r./. -wUn reached them in the poffelhon of the lender, the bor-ttl'^tSr rower is not obliged to compenfate them; the lender fujfFers no more by the loan than he would have fuf- fered without it. Suppofe they would have efcaped in the lender's polTefTion, and yet the borrov/er was guil- ty of no negligence about them : here a lofs muft be fuftained by one fide, or by both: neither is fuppofed to be in any fliult. If no other reafon of humanity be on the other fide, the borrower feems rather oblieed to bear it, out of gratitude ; nor is it fo readily to be prefumed that the lender, who had no views of gain, confented to bear fuch lofTes, as that the borrower did fo; fmce for the advantage of the gratuitous loan, men would readily make themfelves liable to fuch im- probable hazards. The truth may be that neither thought of fuch contingencies ; if they did, they would have exprefly agreed on whom the lofs Ihould fall. And probably it had been on the borrower. There feems little occafion for a general rule to caft all fuch loffes always on one of the parties. If the lender were
I 2
68 Concerning the ordinary Contracts.
Book II. rich, and the borrower poor, it would be mean in the ^^-^^"V^^ lender to demand any compenfation. If the borrower were rich, it would be bafe in him not to compenfate. If their fortunes were equal, or fo good that neither would be diflrelTed by the lofs, it would belt become the borrower to bear it altoo;ether, as he received a favour in the contrail. The lovely and honourable part is eafily feen; tho' it is not always eafy to find reafons for rules carting the whole damages in this and fuch like cafes, univerfally on one fide.
The lender is bound to refund to the borrower, alt expences made in neceflary repairs by which the goods are preferved lit for the proprietors ufe; and no others, unlcfs by exprefs agreement. i-cjc of.tum. ^^' "T^^^ depofitum is a branch of the mandatnm, where '' thebuiinefs committed and undertaken is the " fafe cuftody of goods." The * keeper, as he pro- feffes friendfhip, binds himfelf to fuch diligence as wife men ufe about like goods of their own; and mufb reftore the goods upon the demand of the proprietor^ ^ except only in fuch cafes where one would have it right to oppofe him by violence in an unjufi: defign. Thus one may detain arms dcpofi ted, when demanded with a view to murder any innocent perfon, or to make war on our country. The depofiter is bound to refuad all prudent expences made in keeping his goods.
IV. In onerous contrails, both fides profefs to Q-ive
Oyuroas con- ' I O
tr^s, or transfer goods or rights of equal values. Moft of
« Dspofiiar'ms^ \ Cicero gives adeciGon too geiicral and inaccurate, De Offic.l. i. c. i o».
liiif.s
The ordinary Contracts. 69
the neceflary rules appear fufficiently from what was Chap. i-. fliid * above about contra6i:s in general. The chief ^-^VXJ forts are,
1 . Barter, or the exchanging goods of equal va- Barter. lues ; which differs from mutual donation in this, that
in donations there is no obligation to equality.
2 . Buying and felling ; the fimpleft manner of which ^.y-v^ nnd /d. is when the buyer at once pays the price, and re- ceives the goods. If the price be paid, or fecurity for it accepted, and the goods delivered, as the property is compleatly transferred, no fubfequent fale, or im- perfect prior contract about felling,, can elude th^ buyer's right. If the goods are to be delivered on a future day, but the bargain compleated about them.; if they perifh before the day, the lofs falls on the fel- ler. If they perilh after that day, and the feller was ready to deliver them upon it, lie is deemed after that day only as the depofitary. All lofs, without the fel- ler's fault, muft be borne by the buyer. Where an a>- greement is made about certain quantities of goods which cannot be now delivered, fuch as about a. fu- ture crop ; and the feller afterwards contmdls with a third perfon not apprized of the prior contract, and> delivers the goods upon receipt of the price ; the civil law favours the latter, as a fair purchafer, and deems allfales imperfed: without delivery; but gives to the perfon deceived in the former contrail a full right a- gainfl: the fraudulent feller, to the whole value of the bargain. If both have paid the price, and the feller
* See chap, 6. of this book.
Sc:tir' to hire.
70 T/;c ordifiary Contracts.
Book IT. provcs infolvciit, It is not eafy to find valid reafons for carting the whole lofs on either. There arc many * additional covenants in the bargains of fale wliich are futHciently underftood by the terms of the agree- ment.
V. Seithig and hiring includes all thefe contracfts wherein '' one agrees for a certain price to do any " work, or to grant the ufe of any goods, moveable " or immoveable' In thefe contracts men are obliged to ufe the goods they hire, as wife men ufe like goods of their own ; and are truly liable in confcience for all damage done by ufing them othenvays; as it is as In- jurious as any other fort of wrong. A man of true in- tegrity and humanity w^ould particularly regard the cafe of fuch indigent perfons as often fet houfes, fur- niture, and other goods to hire; and be religioufly jcautious of doing any unnecefTary damage to them.
When materials are given out to be manufactured or wrought by an artirt at a certain price, the Romans have another ^ exprefTion for the contracT:, but it is of the fame nature with that of hiring labour. The fetter of goods muft make them fit for ufe, and keep them fo, or refund any charges the hirer has been put to in doing it. And the hired labourer, as he is bound faithfully to execute his work, fo he is not to be de-
* Such as the lex comm'ijjbria, that is, if the price is not paid on a certain day, that the bargain is void. AddlHio in diem, where the feller may accept of a better price offe- red before fuch a day. Claiifula retrains, •or a right of redeniptioa. Jus prothnlfioi
the right of redemption or the firfl offer, if the buyer inclines to fell again.
f Locare opus facimdimi; where the/o- cator pays the price. The locator operas re- ceives the price.
The ordinary Contracts. ji
frauded of his hire. If he is hired for a lone tra6lofCHAp. i^ time, the hirer cannot in humanity make any deduc-^-^^v^J tions on account of fmaller interruptions given to his fervice by tranfient fits of ficknefs. Such fits are inci- dent to the firmefl conflitutions ; and the hirer is juflly prefumed to have precluded himfelf from fuch excep- tions, or dedu6f ions from the price agreed to, by hiring for a tract of time.
VI. In loan for confuinption at a fet price orinte- Loan for con^ reft, the lender claims not the fame individual, but e- >"'^'""' qual quantities, and the price for the loan. Some goods bear natural fruits or increafe, as lands, flocks, herds, gardens. The grant of thefe fruits naturally deferves a price or rent. Tho' goods have no fruits or increafe, yet if they yield great convenience in life, and have coft fuch labour or expence as would have acquired goods naturally fruitful, if the proprietor grants the ufe of them, he may juftly demand a price, fuch as he would have had if he had employed his money or labour on goods naturally fruitful. This is the cafe in fet tins; of houfes.
If in any way of trade men can make far greater j/v;.;? /.««/*. gains by help of a large ftock of money, than they ''"'"^ '"'"'■' °" could have made without it, 'tis but jufl that he who fupplies them with the money, the necefHiry means of this gain, fhould have for the ufe of it fome fhare of the profit, equal at leaft to the profit he could have made by purchafing things naturally fruitful or yielding a rent. This ihews the juft foundation of intereft upon money lent, tho' it be not naturally
loans.
-^2 The ordinary Contracts.
Book II. fruitful. Houfcs yield no fruits or increafe, nor will \y^'^r^\j foiiie arable grounds yield any without great labour. Labour employed in managing money in trade, or manufactures, will make it as fruitful as any thing. Were intereft prohibited, none would lend, except in <:harity; and many induftrious hands, who are not objeds of charity, would be excluded from large gains in a way very advantageous to the publick. ^. r c VII. The reafonable intereft varies accordino; to
T't" meafure of O
rjiinicrejt. ^j^g fj-^^-g ^f tradc, and the quantity of coin. In a country newly fettled, or but beginning to trade, where few hands and little money are employed that way, great profits are made by fmall fams: and as in fuch places more land-rents axe purchafed for any given fum than in countries flouriihing in trade, and abounding with money ; an higher intereft is reafon- able, and no man would lend except upon an high intereft. The gain too made by any fum is fo large, that traders or purchafers can aftord to give it. When many hands and much wealth are employed in trade, as men can be fupported by fmaller gains in propor- tion upon their large ftocks, the profit made upon any given fum employed is fmaller, and the intereft the trader can aftord muft be lefs. As money grows plentier, and bears lefs intereft in loans, more incline to purchaftes of lands than formerly, and this de- mand raifes the rates of lands, fo that fmaller land- rents can be obtained for any fum. Men are therefore contented with fmaller intereft than formerly when •rhey could have got greater land-rents. They Ihould
The orduiary Contracts. -^
be fatisfied if It furpaffes the annual profits of pur-CiiAP. i- chafes, as much as compenfates the greater troubles v^^'vO or hazards attending the loans: and thus it fails of courfe, without the force of laws.
Laws too muft follow thefe natural caufes in fettlino- ,,. , ,, the intereft, othenvays they will feldom have their ef- "•"■"'•''• feci, and be iniquitous. If the legal intereft is high in wealthy nations, where fmall gains are made upon any given fum employed in trade, traders will not borrow without abatement of intereft, nor will men borrow for purchafmg lands, when the annual rents of them are far below the intereft. Moneyed men may firft run upon purchafes , and decline to lend upon fmaller than the legal intereft; but the demand for lands will foon raife their price, fo that they ihall get much fmaller annual rents for a given fum: many will therefore accept of intereft below the legal, but high- er than the annual rents of lands. If the leo:al inte- reft is made too low, few will incline to lend ; they will firft attempt to purchafe lands : if the price of them rife by the great demand, fo that fmall annual profit is made this way, moneyed men will turn to trade and manufaclures. Men not educated to fuch bufinefs, or who choofe to live without bufinefs, will find aclive traders always fond of borrowing at high- er than the legal intereft, and will find ways by dif- count, and annual gifts agreed upon, to elude the law.
The chief ufe of fuch laws is to fettle the intereft decreed by courts on many occafions, where there has
Vol. II. K
-; . The ordinary Contracts.
Book II. been no agreement of the parties; and to prevent the ^.y^VN^ extortions of fome grafping wretches upon the incau- tious, or the diftrelTed. Prudent men v/ill fettle this point for themfelves according to the natural caufes. If the polity of any ftate allows little commerce with foreigners, admits of no great incrcafe of wealth in the hands of a few, nor of any alienation of lands to perpetuity; if it is defignd for a repiihlick of farmers, which fome great authors judge mod adapted for vir- tue and happinefs,* there all intereft of money might properly be prohibited. But where the ftrength of a ftate depends on trade, fuch a law would be ru- inous. Tartr.crnnb. VIII. lu tlic coutracfls of partncrfhip , which are of very different forts, the terms of agreement deter- mine the rights and obligations of the partners. But as they profefs mutual friendfhip to each other in this contrail, there is more room for all reafons of equity and humanity in this than other onerous con- tracls ; and all frauds deferve a feverer punifliment.
IX. In fome contracts a certain price is paid for an uncertain profpe6t: of gain, as in the purchafe of annuities for life, or of tickets in lotteries. If the fum of tlie prizes is no further exceeded by the fum of the prices paid for all the tickets, than what defrays the neceffary charge of fuch projeds, and makes a reafon- able compenfation for the attendance and labour of
♦ This Harrington and others judge to be ihe polltj' of the Hebrews ; and hence in- lerefl was prohibited among them, but it might be exadled from foreigners. Deut, xxiii. 19. rfuln^. XV. 5.
Contrails cf ha- zard-httsries.
The ordinary Contracts, y r-
the proj ecflors ; the concra6l is not cenfurable upon the Cn .^ p . r 3 . account of any inequahty; but fuch projects are of-'^'V^- ten blameable on another account. Private lotteries, wagering, and contrails of gaming, produce no good to the publick, nor avert any evils. Some citizens are enriched by the lofs of others, in a way wholly ufelefs to the pubUck. Through the vain hopes of multitudes, and a fort of felf-flattery in their good fortune, were there no reftraint put to fuch pracli- ces by law, great fums of money which other^vays would have done good to the publick in trade or manufa(^ures advancing the wealth of a nation, v/ould by bafe artifices be drawn into fuch ufelefs channels, and men's minds be diverted from all ufeful induftry. 'Tis therefore juft to reftrain fuch private projects or contracts, even where there is nothing directly frau- dulent in them. Upon fome publick exigence no doubt money may be prudently raifed by this way of lottery, which can caufe no complaint, fmce none are forced to contribute.
There are other contra6ts of hazard where a fmall , ,
... . . . Injur sua:.
price is paid to obtam fecurity againft a great uncer- tain danger; or to have fuch loiTes made up when they happen. Such are the infurances againft the dangers at fea, or thofe from fire. Such contrivances are both humane and ufeful to the publick. The in- fur ers are enabled to indemnify the fufferers by the premiums received from thofe whofe houfes and Ihips are fafe. Thus a fort of partnerlliip in loffes is efta- ;blilhed over a nation; as the lofTes are made up by
K 2
&''
76 The ordinary Contracts.
Book II. i'mall Contributions from thofe who have efcaped the '^./"VVJ calamity. Thu? many a(5live hands in bufinefs are pre-
ferved from early ruin by fuch accidents. w^gtrui ^'.i In the private contrads of hazard, or partly of hazard, partly of art, fuch as wagering upon uncer- tain events, or upon the fuccefs of a game; if the fums ventured do not exceed what the perfons can af- ford to fpend upon any amufement, without obftruc- ting any duty of life; if no more time is fpcnt in games than what is a neceffary lefrelliment from fe- rious bufmefs or ftudy; and no habit of floth or Im- patient hankeiing after fuch diverfions Is contra^led-; the contra6ls cannot be called criminal or faulty. But when the fums hazarded are fo great that the lofs of them would any way diflrefs us , or our antagonift, and as no good can arife from fuch contra6ls, they are highly criminal. 'TIs moft inhumane, as well as foolifh, to expofe the fortune which fhould fupport n family, our friends, or the poor, or even afTift our country, to fuch unneceflary hazard. It Is wicked to ly in wait for the ruining our neighbour through his own rafhnefs or imprudence. No man of true virtue or confcience could retain fuch gains when he got them. And it is amazing how, in ages of luxury and corruption, men can fo far forget the true na- tures and names of things, as not to look upon all fuch gains as fcandaloufly infamous to men of better condition, when they are plainly acquired by the fame meanfpirit of injulHce, or avarice, that we all abhor in a thief or a pick-pocket. 'Tis wife therefore in
cr funti.
The Obligations quajl ex contraciit, -jj
every nation to reftrain fuch pra(5lices by the fevereflcHAP. 14. laws, and moft infamous punifhments ; efpecially in ^^y^V*\j thofe orders of men who ought to be moft above fuch bafenefs of foul,, and whofe vicious examples muft be moft extenfively pernicious. But quid leges.
Jine morlhus vanae profic'uirit.
X. The common fecurities given for performance c.«^m7; oj j,;.. of contracts, are pledges and mortgages (of which already ;) and bail, when other peifons become bound in cafe the principal debtor fails. As the loans are often made more upon the faith of the furety than die principal, when the principal neglects to pay, or becomes infolvent, the furety is as much bound in honour and confcience, as the principal w^as; and can no more ufe any delays, evafions, or artifices, with a good confcience, thaxi if the money had been lent for his own ufe ; except he difcovers fome grofs negligence in the lender, or fome fraudulent collu- fion with the principal, by which this burden is un^ juftly, or malicioufly caft upon him.
CHAP. XIV.
^erfonal rights cirifing from fome lawful aBion of IIk perfon obliged, or of him who has the right,
I. QOME rights arlfe, not from any contra6l> i?;^;,;; „,•-«. ^ but from fome other a6lion either of himv''"''^'\'"^r/ who has the right, or of the perfon obliged. Thefe anions founding rights are either lawful; or unlaw^-
y8 The Obligations quafi ex contraBu,
Book II. ful. When the a6lIons are lawful, the Civilians to ^^-^^"'"^^'^^ avoid multiplying the fources of obligation, or forms of a6lion, call them * oUigationes quaji ex contraBu ortae: feigning a contraS: obliging men in thefe cafes to whatever could reafonably have been deman- ded by the one party, and wifely promifed by the o- ther, had they been contracting about thefe matters. The obligations indeed appear fufliciently, without recurrine to the notion of a contract, from the na- cure of the a6lions, and the rights of property, and their effeds. When the action is unlawful, thefe are the rights arifmg from injury, of which in the fol- lowing chapter.
The former obligations qtiaji ex contraBu are redu- cible to two clafles. i . Thefe arifmg from taking pof- fefllon of goods which one knows belong to others^ or are fubjecled to the juft claims of others. 2. Thofe arifmg where one derives to himfelf any valuable ad- vantage at the expence or lofs of others, who did not confent or contra6l to bear this lofs gratuitout ly. Thefe obligations arife either from the nature of property , or mens prior claims ; or from the general focial law, that none fliould fuffer by any o'ood offices done to others not intended as a o-ra- tuity, or be damaged in his property without his confent. The oiiigation H. Of thc firft clafs is the obligation upon the Zoj!{faV''' ipoffcfihi of other mens goods to reltore them with
* Inftit. 1. iii. tit. 28.
79
The Obligations quaji ex contra&ii,
their profits: the obligation upon the * heir to paycnAp. 14. the debts afFe61ing the inheritance, and upon the ex-^.rv^v> ecutor to pay debts and legacies as far as the effe(5ls go. The eftate defcends fubje6l tofuch claims, and the heir has a right only to what remains after dif^ charging them : the effects of the deceafed are the fole fund out of which fuch debts fhould De paid. Nor is there more left to the executor than the fur- plus after debts and legacies are difcharged. The le- gatees have as juft a right to their legacies as the ex- ecutor or heir by will has to the furplus.
To this clafs too are reduced the obligations of all who have poffefTion of the goods of others without contra6]:, fuch as tutors and curators, or thofe who preferve and take care of the goods of the abfent without commifTion; who arc called iwgotii iitilisgef- tores. All thefe are plainly obliged to reftore, and account with the proprietors for their goods and the . profits of them.
III. The fecond clafs contains the obHeations on thofe for whom any important fervice is done, or co^''"'sotii whom any advantage is derived, by the labours or" expence of others, without a commifiion or contracl. The perfon thus profited is plainly obliged to refund all prudent expences, and compenfate all labours not intended gratuitoufly. The merchant whofe fhip- wrecked goods are preferved by my labour or ex- -
The claim of utilis
♦ The obligation on the heir to pay debts is plainly of the fame nature with that of the executor or heir to pay lega- cies, tho' the Civiliam called the later on-
ly an obligation quafi e:< conlraclu. They feigned the heir, as to the debts, the fame perfon with ihs deceafed, and thus made him liable.
rnjintcnar.ce.
80 The Obligations quafi eic contraclu.
Book IL pence, without my intention of doing fuch fenices, or bearing fuch charges as a favour, is obHged, when he claims his own goods, to compenfate if required all my prudent labours and expences. Thus one is obliged to indemnify his tutors and curators in all their prudent management of his affairs ; and for thefe claims there were particular * a6lions in the civil law.
The cium f:r As to thc obligatlous upon children for their maintenance, we may conclude, i . What a parent expends upon his children when they have no fortunes of their own left them by fomc other friend, is uni- verfally prefumed to be a donation, where the con- trary is not declared. But tho' the parent be ftrictly obliged, from the ftrong tie of nature declaring to him his duty, to provide neceifaries for his children, and even is bound by the ftrongeft tie of humanity to improve their condition as he has fair opportuni- ties ; yet his not placing fuch offices to an account of debt to be compenfated or difcharged by the chil- dren , is to be reputed an obliging a6l of kindnefs , which he could not be compelled to by any perfe6i: claim of the children. A parent may juftly claim to have the expence refunded, if he falls into any dif- trefs. Nay without being in diftrefs he may juftly place to an account of debt all manner of neceflary or prudent expences made upon a child who had a fuflicient fortune of its own; and may get them re- funded, either for his own more eafy fubfiftence, or for the benefit of others of his children. But
• A^is contrariatutelae, et negoiiorim gcjlomm .
The O^hiGATioiis qiiaji ex contra&ii, 8i
2. When one maintains the child of a ftranger,CHAp. 14. whatever prudent expences are made may juftly be^-/V^\-^ charged as a debt, where the contrary is not decla- imed. Here there is no prefumption from parental af- feclion that they were intended gratuitouf ly.
The paYtiahty which appears in the laws of fomer;-.;.r^i.%,^ nations that pretend to pay great regard to the na- """'-^ '"'''• tural rights and liberties of mankind, is very furprif- ing. Whatever expences are made by any one on the child of the meanefl citizen, or Fcllow-Chriftian, muil be a donation, whether fo intended or not. It founds no right to the child's fervice, nor to claim any compenfation. He may leave his fupporter when he comes to the ufe of reafon. And yet the equally innocent children of captives in war, or of men of a different complexion, are detained as flaves for ever, with all their pofterity, upon no other pretence of right than this claim upon them for their mainte- nance; as if fuch were not of our fpecics, and had not bodies and fouls of the fame feelines with our own; or as if mens fecular rights were founded on their religion, or on their complexions.
'Tis true indeed the mailers of the parent, or he ^. .. . who mamtams another s child at his own expcnce/'''"' «/"« '^' has a right to claim compenfation for all neceffary ' - and beneficial expences made on the child, and thefe only ; not fuch as were for the fplendour of his own family. But this right is no higher than that of any creditor in an equal fum over his debtor. If any friend of the cliild offers to come to account, and refund
Vol. IL L
82 The Obligations qiiajt ex confraBu,
Book II. the paft expences, the mafler cannot juftlyrefufe it^ ^^^^^''"^-^or detain him. If the child when he attains to the ufc of reafon finds another he rather choofes to be in- debted to, who will repay his former mafter's ex- pences, the mafler cannot juftly detain him. The labours of the child, after the time that he could earn any thing beyond the plaineft food and cloathing, fhould be placed to account as difcharging fo much of his debt as their value furpafTed that of his necef- fary maintenance. And when the fum of their value, after deducting the charge of the annual neceflary maintenance, equals the expence of his maintenance in his childhood, the mafter has no further claim up- on him. It would generally be found that the labours of any pcrfon found in body and mind, would fuffi- ciently difcharge this debt before he came to thirty years of age : and where there was any conliderable dexterity, they would difcharge it much fooner. The debtor has plainly a right to choofe that labour by which he can fooneft difcharge the debt.
If greater cxpences are made on a child for its in- ftruction in any art *, the child is no doubt liable for any fuch higher expences as were made for its real benefit. But then, its labours in this art are fo much more valu- able that this greater debt would be fooner difcharged : otherways the expences were not for its benefit. jh, pka hi this 'Tis pleaded that v/here any fum is advanced upon "!>ld!'"" '"any hazard, there one may * juftly infift on more than
* This is the cafeofcontrafls on Bottomry, wheretheonlyfccuriiy is given upon the fhip. A great premium is deemed juft, bccaufealUs loftif thefhippcrifh.
The Obligations quafi ex contrdBu, 83
the reftltution of the fum advanced, with all the Ic-Chap. 14. gal intereft : that in thefe qiiaji contraBs, men are bound \y^y^\j to all that could have been reafonably demanded, or prudently agreed to, if perfons had been in a condi- tion previoufly to have contra6led. That to engao-e a man to advance any fum where there is an hazard of his lofing all, he muft alfo have a profpecl of fome confiderable gain in cafe the event proves fortunate. What is thus advanced for a child will be entirely loft if he dies before his labours difcharge it ; there- fore much more is due than the fum and the common intereft. This claim can fcarce wholly be denied, nor would it be unjuft to infift on fome thing more. And yet in other cafes, where a plea of Angular necefTity is no greater than that a deftitute infant has to a bare maintenance, we do not think it reafonable to obliee to further compenfation than the principal and inte- reft. If I take another's horfe to afTift me in efcaping from fome imminent danger, and return him fafe with a proper price for the ufe of him, or if he is fpoiled, if I pay his full value with intereft for any time I delayed payment, no more is demanded, and yet had I periftied he would have got no compenfa- tion. Sure the necefTity of the child is as great.
Allow that there ftiould be fome inducement to men to rear fuch deftitute children, of whom fome may die without making any compenfation. It can- not be alleged that the debt of fuch as die is charge- able on thofe who live. But 'tis truly reafonable that .each one be charged with fomething further than
L 2
8^t The Obligations quafi ex contraBu.
Book II. was expended, on account of the hazard run in ex- ^s./*v^\j pending it: and this a wife man would confent to in a like cafe of his own. But this claim cannot make a pTcat addition. Grant that one third of the children born, die within the firft three years; this would add jurtly one third to the charge of thefe three years and little more. The hazard grows always fmaller as they advance in years till their labours could difcharge the debt. On account of fuch hazards it would never be jull to demand more than in proportion to the ha- zards in the fcveral periods of life, and this would fcarcely add a fifth part to the fum of the expences, till they attain to the age of ten or twelve, when their labours begin to compenfate their maintenance, nay to abate the debt. Yr,.nthprtra. "^^^ furthcr pleaded, that in fome barbarous na- ■vug them >f ' tions, unlefs the captives were bought for flaves they would all be murthered. They therefore owe then- lives, and all they can do, to their purchafers; and fo do their children w^ho would not otherways have come into life. But this whole plea is no more than that of the negotimn utile gefliim, to which any civi- lized nation is bound by humanity, 'tis a prudent expenfive office done for the fervice of others without a gratuitous intention : and this founds no other right than that to full compenfation of all charges and labour employed for the benefit of others. Thus fuppofe a merchant buys an hundred fuch flaves ; fo that his whole charges on the voyage, and prime cort of the captives, adding alfo a reafonable merchant s
Caures of our-
The Obligations qiiafl ex coufra&u, g *
profit upon the ftock employed, amounc to a thou- Chap. 14. fand pounds. Thefe captives are his debtors jointly for this fum; and as- foon as the value of their la- bours beyond their maintenance amounts to this fum, and the legal in tereft from the time it was advanced, they have a right to be free; and this it would do in ten or twelve years, tho' a third part of them died ; and then all his claim, or that of any one under him, would ceafe.
A fet of inaccurate popular phrafes blind us in thefe matters. Captives owe their lives and all to the purchafcrs, fay they. Juft in the fame manner, we, our nobles, and princes, often owe our lives to mid- wives, chirurgeons, phyficians, fellow-foldiers, fer- vants, neighbours: one who was the means of pre- ferving a man's life is not therefore entituled to make him a Have, and fell him as a piece of goods. Strano-e, that in any nation where a fenfe of liberty prevails, where the Chriftian religion is profelTed, cuftom and high profpe6ls of gain can fo ftupify the confciences of men, and all fenfe of natural juftice, that they can hear fuch computations made about the value of their fellow-men, and their liberty, without abhor- rence and indig:nation !
IV. To this fecond clafs of (juaji contraBs are re- rhe *j%./;.,;x ducedth^ oblio-ations of fuch whoufino- the privileg-e^'"*"'/''''"^ '*'
c o Jr o p'-Tiiigci 0] lit-
of necefTity have done fome damage to others; which "'^'^• they are always obliged to compeniate as foon as they can. Such too. is the obligation of one who * received
• For tills there was the andiiiio indebita.
"86 Rights arijtng from Injuries.
Book II. as duc what afterwards appears not to have been due;
v^^VXJor f received a price upon account of a fervice or prellation which cannot be performed: or received any thing on account of a contradl or promife againlt which there lay a juft exception. All thefe are obli- o;ed to reftore or compenfate what was thus received. Thus likewife, partners are obliged to refund propor- tionally what any one of them has ufefuUy or by di- redion expended above his 111 are, upon the common flock. Such too is the obligation of one who by any lawful action, or contrivance, or ftrudlure of his for his own behoof, has occafioned damages to others which they were not previoully bound to bear with- out compenfation ; or had not contraded to bear gratuitoully: he is naturally obliged to compenfate them.
CHAP. XV.
The rights arijingfrom injuries and damages done by others: and the ahoUtion of right.
jin injury de- fined.
I. T"^ H E violation of any perfecfl right of ano- -IL ther, is an injury, whether by violence to his perfon, attacks upon his chara6ler, reftraints up- on his right of liberty, depriving him of his goods, fpoiling them, flopping the profits he had a right to, or withholding what he had a right to claim; whether any of thefe things be done with a malicious defign, or a felfifh one, or by culpable negligence;
f Condiaio caufa data caufa ncnfecuta.
Rights arijing froml'^]V'^iLs, Sj
whether * by adding or omitting contrary to our du- Chap. ly. ty. The damage includes, f befide the value of the ^-'^W^' goods taken away, fpoiled, or detained, all loiTes or inconveniences enfuing upon the want of them; and all interception of gain which would have accrued.
The damage one has done he is facredly obliged j?;^,f//,c,.,^„- to compenfate to the utmoft of his power. The in-^^,f" '^ ''"'"" jury is pcrfifted in till this be done : nor can one other- ways fmcerely repent, or recover the character of ho- nefty. The perfon injured has a right to compel the author of it to this compenfation: without this rio-ht, bad men would trample on all the rights of their fel- lows. 'Tis generally for the pubhck intereft, as well as that of the fufFerer, not to remit this right of com- pelling even by force to make compenfation, and of inflicling further evils as punifhments; and that not only for the future fecurity of fuch whofufFered, but for the general fafety; that all bad men may be de- terred from the like attempts, by fear of the like pu- nifhments.
When more than one have concurred in an inju- jr-j:, ir.,, ry, he who by authority or power compelled others ,7^ fub]e6l to him, is the principal caufe; he ought to make reparation, and fuffer the greateft puniibment. But when we cannot reach him, as he cannot give impunity to others in injuries, we have not only a right of violent defence againfl: thofe who injure us at his command, but of obtaining reparation from
* Faciendo, vel norifaciendo fecus qiiatn debehat. \ Lucrum cejj'a?!: vel daf/inum emergsns.
•en mar.y co^-
88 Rights anfing from Injuries.
Book II. them; nay ofcen of inflicling punifhment upon them when they have adled knowingly againft their duty, or through culpable ignorance. If the injury be re- parable, and of a lighter fort, and the immediate a- gent undertook it only to avoid vaftly greater evils threatened by thofe who had him in their power, his adion perhaps was not criminal, it was excufed by the plea of neceifity; (of which hereafter) but this plea will not free him from the obligation of repairing any damages done to other innocent perfons, as the means of his prefervation.
Where many have by concert done any damage, each one is liable for the whole, when we cannot obtain reparation from the red:, even altho' wt knew -what fliare each one had in the action, or the fpoil. But when at different times, without concert, diffe- rent perfons fpoil a man of all his goods, each one feems liable only for his own part of the damage; tho\ more may be demanded by w^ay of punidiment. \s\ the former cafe when one has compcnfated the whole, no more is due to the fufferer on this head. The reil are bound each to refund his fliare to him who com- penfated the whole. In punifnments the cafe is other- ways; the fufferings of one do not exempt the reft. Compenfatlon y and punijhment , have different ends and meafures ; nay compenfation is often due where there has been no fault.
When one employed in any ufeful perilous fervlce to the publick, does any damage to others by fuch inadvertence as is fcarce avoidable, the damage Ihould
Rights cirifingfrom Injuries. 89
be compenfated by the publick for the intereft ofcuAp. 15. which fuch fervices were undertaken. Thus if one in *^-/VXJ the heat of battle hurts any of his fellow foldiers un- defignedly.
Damages done by hired fervants, without orders d.« r^.; ^r,r.. from their mafters, are chargeable only on themfelves :*^-^'""""''' when done by orders, they are principally chargeable on their mafters. When damage is done by a flave, without his mafter s fault, the flave is naturally bound to compenfate it, as he is a moral agent. But the mafter having a right to all his labours, by which a- lone he can compenfate, the flave feems in the con- dition of one indebted to two creditors above the va- lue of all his goods and labours j which therefore muft be divided between them in proportion to their claims. Suppofe the flave worth forty pounds, this is the mafters claim ; and that the damage is valued at twenty, this is the fufferer's claim : the mafter, if he retains the flave, fliould compenfate two thirds of the damage. If the damage had been valued at forty pounds, the mafter fliould compenfate the half of it. And he is always obliged to give fecurity againft fu- ture damages upon difcovering the injurious difpofi- tion of his flave. Should the mafter compenfate the whole damage, or deliver up the flave; in many cafes the mafter would fuftain all the lofs, and the fufFerer none at all, while yet both may be equally innocent; which feems unjuft. Civil laws fome times enjoin this, to make mafters more vigilant about their flaves. But as flaves are moral agents, they are always liable them-
VoL, U, M
oo Rights arifingfrom Injuries of others.
Boo:: IT. felvcs to fuch punifhments as may be neceflary to re- '^^'^^^'"^^ftram their vices, whatever way damages be compen- faced: the change of fervice might be no puniiliment to them. i>cwngchr^iy When damagc is done by the beaft of any one *'■ •^'' who had no ground to fufpe6i: fuch an hurtful difpo- fition in it; a hke decifion, as to bearing a ihare of the damaee with the fuffercr, would feem reafonable. Some * civil laivs are feverer on the proprietor, to en- o-ao-e the greater care that their cattle be not injuri- ous. Where any unufual petulance or vicioufnefs has been previoully known to the owner, he is in all cafes liable to full compenfation ; fmce he was obliged to prevent thcfe damages, and fuch negligence is juftly punifhable. rresutyoffuch II. Whcn one negligently, or in a fudden pafTion, l-;mf"''*^' "has done any damage, he fhould voluntarily offer full compenfation, and any reafonable afTurance an un- byaifed arbitrator fhall appoint, againft any future in- juries; and upon this the pcrfon damaged or injured Ihould be entirely reconciled. Voluntary fubmilTion to compenfation, and fuch afTurances for the future^ are all that can be reafonably demanded. To refufe them, when demanded, fhews an hollile injurious difpofition. 7he.i,juryr.jde. Ouc fort of damagc isfo common that many feem ir.ys ofia-jmni ^^ Qy^j-joQ]^ i^-^^ injufHce of It, thc dclaylug payment
of debts owned to be juft. In fome fettled debts, as
* Exod. di. 21. Inftit. l.iv..tit. 9. Dig. 9. tit. i. and others dc a^ionihiis no:<:iU- hiLsci de pauperis.
Rights arifing from Injuries of others. or
thofe upon bonds and fome others, the law eftimaces Chap. ly. the damage of delay at the common intereft of the money; but by an unreafonable partiality allows no intereft upon current accounts. A man of true ho- nour and juftice may think the common intereft a fuf- ficient compenfation to a moneyed man wlio is not engaged in trade or manufa6lures, unlefs he fuftains fome other lofs by our having delayed payment. But to men in trade, 'tis manlfeft that the injuiyand da- mage of even delaying payment is much more grie- vous ; not to fpeak of the expenfive fuits they are for- ced to, the occafioning their credit to fail, or of de- frauding them altogether, which to common fenfe muft appear one of the vileft and moft impudent forts of theft, and ftiould be punifhed accordingly, when done with defign. But the very delay is an injury and a damage always equal to the gain a trader could have made by his money in the fame time ; which is generally double of the legal intereft : for this double intereft an aclion ftiould certainly be allowed, upon all the delays after the time agreed upon in the con- tra61:. Not to mention the other grievous diftreftes occalioned by fuch delays, when the trader's credit fails, and a family is entirely ruined, w^hich could otherways have had a decent fubiiftence. Manufac- turers and traders muft charge an additional price up- on all goods to make up thefe lofles by dilatory debt- ors, and vexatious expenfive fuits, as well as the lof- fes by infolvent, or fraudulent debtors. Thefe loftes fall upon honeft and good oeconomifts who pay regu-
M 2
Q2 " Rights arijingfrom Injuries of others.
Book 11. larly, as well as upon the dilatory, fince on account O'^/^XJ of thefe lolTes all goods are fold fo much dearer. By thefe means too the rates of our goods muft be raifed when fold in foreign markets : fo that other nations^ where there is a greater regard to juftice, are enabled to fell like goods cheaper, and ruin our trade. ji^hit^rcntm III. In natural liberty men have a right by force to ^aiuraiiihrty. j^f^j^j thcmfelvcs aud their neighbours, and all their perfecfl rights; and to compel others by violence to fulfil any perfecfl claims they have upon them. We are bound no doubt firft to try all gentle methods ; but when thefe fail of fuccefs, wx have a right to ufe violence, with what alFiftance we can obtain from any others who are perfuaded of the juftice of our caufe. In civil focieties (as we fliall fee hereafter) the wifdom and force of the ftate Ihould be employed for thefe purpofes, to prevent the evils to be feared from the pafllon of interefted men under frelh imprefTions of apprehended injuries. Citizens are generally un- derftood to have committed thefe rights of violent profecution and defence to the magiftrate, wherever his aid can be obtained ; and to have precluded them- felves from exercilino; them in fuch cafes. The rules about violent defence and profecution muft differ in thefe different ftates of liberty , or civil polity, and that in thefe * three particulars, i . the caufes, 2. the time of beginning violence, and 3 . the term to which it may be continued.
• Ciiujae, termjnii! a ^uo, tt terminus ad qmntv
Rights arifingfrom Injuries of others, o ^
I. The caufes, in natural liberty, are any viola- Chap. 15. tions of perfect rights great, or fmall. 'Tis true one^^^^''^-^ is obliged in humanity to ufe all gentle methods ^tJZo\Ll7lZ firft, and to ufe no more violence or feverity than may ■^"'-^• be neceflary for his own fafety, and that of others. We fliould always be ready to offer a reference, or to fubmit any difputed point of right to arbitrators. If the inj ury be the ejffecl of a fudden pafTion, of which the author will foon repent, and it be reparable; 'tis the humane part to bear it rather than rufh into fa- tal violence in our defence. But if the injury be de- figned deliberately, and perfifted in after friendly re- monflrances, one has a right to defend himfelf by vi- olence even with the death of the invader. To deny men the right of violent defence to the utmoft in maintaining their fmaller rights of the perfecl: kind, would expofe all good men, and all their properties, as a perpetual prey to the infolent and injurious. A fmall injury may be repeated every hour by the fame perfon, or by others equally infolent; life would be intolerable without a remedy for fuch evils. The pub- lick intereil and fafety requires that men fhould be violently deterred from fuch infolent attempts.
As to the profecution of fmaller rights, 'tis hard to fay that inconfiderable injuries can juftify our go- ing to the utmoft extremity, or that it is neceffary to proceed to any fatal violence to compel men to fulfil any trifling contradl, or perform fome fmall matter we have a right to claim. We can abftain from all future commerce with fuch perfons : and 'tis better to
g. Rights art fing from Injuries of others.
Boo Till. fufFcr a fmall lofs than the refleffion that for an un- v./V^Vw' neceffary advantage we were intituled to, or for re- covery of what was of no great value, v/e had taken away the life of our fellow, when we could be other- ways fecured againft like injuries for the future. r.cy cu d-f- A fubje6l under civil government fhould ufe no vi- ^""^"/'"''•olence againft fuch as are amenable to laws, except in defence againft injuries irreparable, either in their own nature, or through the infolvency of the inva- der. In other cafes the fafer remedy is an adion at law. If the invaders are not amenable to laws, fuch as fugitives, robbers, or pirates; the rights of natural liberty remain againft them; as they do alfo where- ever the hope of deteding and conviding them fails, as in the cafe of thieves in the night-time.* 'Tis by actions at law alone that we are to compel fuch as are amenable to them, to fulfil our claims upon them. The time of com- jv. 2. Thc tlmc whctt violcncc is juftly begun in '""''"^'"''"'"' natural liberty, is when one has fufticiently declared an unjuft and hoftile difpofition, and defifts not up- on fuch admonition, or remonftrance, as we have time to ufe. One is not obliged to receive the firft attack or aflault; this may frequently prove fatal; or occa- fion an irreparable damage. Defence and prevention of injury in this ftate, is generally lefs difficult than forcibly obtaining reparation. In all thefe matters, when our danger is not immediate, fmce the keeneft
» This is probably the reafon of the tlldinflion between the furnoSitirfnu and diur- nus in the twtlvc tables. The killing is prohibited n'tfi ido fc defendat. See alfo Exod.xxiii. 3.
Rights arijingfrom Injuries of others, qc
palTions are apt to arife, 'tis beft to be dire6led in allcHAP. 15. methods of defence and profecution, by wife arbitra- ^^./V^ tors not immediately concerned in the injury.
Under civil government, tho' the injury intended be irreparable, yet unlefs the danger be fo imminent that we cannot be defended by the magiftrace, we fhould apply to him for defence; as we Ihould always commit to him the violent profecution of our rights againft our fellow-fubje6ls.
V. 3. The term to which violence fhould be conti- ?^^^"/"- '' ^y nued in natural liberty, is until the danger be rcpelled,.i'';2' full compenfation obtained of all damage and expences. occafioned by the injury, full performance of all we can juftly claim, and fecurity againft like injuries for the future. The inter eft of fociety, as well as that of the individual, requires that all thefe things be ob- tained.
The publick, or mankind as a fyftem, have even vunwmg may a further right of inflicting fuch further evils as areS;^;""""' neceffary to deter others from the Uke attempts. This laft right the perfon who was in danger of immediate wrong fhould not execute alone, but in conjunffion with others who have no private caufe of refentment. Some horrid attempts, fuch as thofe of murder, aflafh- nation, poifoning, robbery, or piracy, fliewfo defperate awickednefs, that fcarce any fufficient fecurity can be obtained to fociety againft the repetition of the like crimes, but the deaths of the criminals. And as men are much allured to injuftice by hopes of fecrecy, or of impunity by flight, or fuccefeful refiftance, it muft
o6 Rights anfingfrom Injuries of others.
Book II. be neccflary for foclety that the punifhments of fuch ^<y"^^'"^<^ as are taken and convided be made fo great as fhall ge- nerally over-balance the invitation to fuch crimes frtmni the hopes of impunity, and deter others from the like attempts. This is allowed juft under civil go- vernment, when crimes abound, and many, one half perhaps, of the guilty efcape convi6lion, that the pu- niihment fhould be doubled at lead, on this very ac- count, that the greatnefs of the evil fhould outweigh the hopes of impunity. The very fame reafons for punifliments, and for increafmg, or diminilhing them, hold in natural liberty, tho' the execution will not generally be fo eafy or regular. The punifhment of crimes in this ftate of liberty is rather more neceffary, and is juftified by all the fame reafons. That the ex- ecution in this ftate may be attended with more in- conveniences, does not prove that there is no right of puniihing, or that all the right muft arife from civil polity. For by the fame way of reafoning we ft*ould deny to men in liberty all rights of felf-defence, and hold that they too arife from civil polity.
Under civil government private men fhould pro- ceed no further in violence againft fuch iis are amen- able to laws than till the prefent danger be repelled. All the other rights fhould be left to the magiftrate. Ko:n^r^,ur\gH Wc fliould always remember on this fubject that frfnanjWy^Tj.^^ Injury or wickednefs lliould make the author ceafe to be the obje(5l of our good-will: and that all our rights to violence are limited by thefe ends, viz. the jepellingihe injury.; obtaining our right, with com-
Rights ctrijing from Injuries of others. ^y
penfation of damages, and getting fecurity for our-CnAP. 15. (elves and the fociety againfl: like injuries for the fu-v./^^'XJ ture. What is inflicted on wicked men for thefe be- neficent and neceffary purpofes is juft, as far as it is naturally fubfervient to and requifite for them: what is not requifite for them, is unjuft and cruel, even to- ward the worft of mankind* Such are all private tor- tures, the fating an angry and revengeful fpirit by in- fults, proftitution to any lufts of ours, or forcing the criminal's confcience, if he has any, in matters of re- ligion. 'Tis very cruel and unjufi: to create further mifery than is requifite for thefe purpofes: when thefe are anfwered, and as far as confifts with them, all hu- manity, mercy, and compaifion toward bad men is a- miable and virtuous. The nobleft fpring of punifli- ment is extenfive goodnefs, or a regard to the fafety and happinefs of the community.
VI. From the preceeding reafonings defigned ^^^^\^r)ucUu,bu-fuu in civil fociety muft generally appear criminal. They maybe lawful when by confent of two Hates they are appointed to put an end to a war. The method is foolifh, to end a debate by the death of a brave man. which arbitration, or the lot, could have decided bet- ter. But if one ftate infills on this method, another may juftly accept of it, when they are more diffident of their fafety another way. But fellow-citizens are underftood to have committed the decifion of their controverlies to judges.
The injuries which give occafion to duels, in na- tions where they prevail, feldom can be rcdrefled by
Vol, II. N
o8 Rights arifing from Injuries of others.
Be ox II. the combat, let the event be what it will; and the e- ^^/W> vcnc is as probably unfortunate to the innocent fide as to the guilty. The cuiloni indeed was introduced in thofe ignorant fuperftitious ages when all fort of fortitude was encouraged by the Popiih clergy, after they had by one artifice or other got it employed in extending their dominions, by crufades and holy wars; and the fuperftitious bravo's had a ftrange con- fidence in the interpolitions of Providence by miracles in behalf of innocence. The charge of fallhood, treachery, dilhonefty, or other vices, which often oc- cafions duels, is not difproved even by fuccefs. The liar, the cheat, or the knave, the moll infamous or faithlefs wretch, may be fuccefsful at the fword, or aim well with a piftol, as well as the worthieft man. The fuccefs changes no wife man's opinion of the character, tho' men may be more cautious, on their ownaccount, of exprefTing their bad opinions. The imputation of cowardice is the only one which duel- ling can tend to difprove. But fome of the vileil: of mankind have not been cowards this way; tho' they act the moft cowardly part when the moft valuable in- terefts of their country require their fervice and cou- rage either in peace or war.
When a man is charQ-ed with fome vices, to at-
V.;,-w cur reputa- ^ O ^ _ -'
tu.nm,s-icmah- tcmpt thc llfc of thc accufcr may be an inhuman, and unneceffary revenge, as it will not confute the charge, but often rather coniirms it. Proper vindication fliould be obtained by law. Our characters, even for courage, may be better vindicated with the wifer
Rights arifing from Injuries of others, op
men, and even with the weaker too, if our country Chap. 15. needs any hazardous fervices in war; nay by our re- folution in times of peace in fupporting its interefts againfl: any infidious defigns of men in power ; or bv a refolute maintaining our own rights, and thofe of our friends, and expreiTmg on juft occafions our in- dignation at the vices of others. Many a combatant fhews a daflardly fpirit in fuch matters. A good man who has done nothing contrary to his duty, is not o- bhged on account of any unjuft refentment of others he may have raifed, to confine himfelf, or quit any pubhck appearances about bufinefs or recreation, un- lefs his regard to his own fafety perfuades him to it. If he is then attacked, he may ihew his courage in juft felf-defence.
One who has wronged another by falfe accufati- on, or by divulging inhumanly his fecret faults, adds a terrible guilt to the former, by accepting a chal- lenge, and attempting the life of the man he had wronged. The fuUeft acknowledgment of his for- mer falihood, ralhnefs, or inhumanity is the only ho- nourable part he can act. When one has done no wrong to the challenger; yet it is generally great folly to expofe his own life, and attempt that of a- nother, upon a pafTLonate invitation. What if the world is not perfuaded of a man's coui'age? he may be reputed in other refpe6ls an ufeful and honourable member of fociety. And to bear fuch reproach for a good confcience, may fometimes be more honourable than any violent part he could have acted,
N 2
ICO Rights anfingfrom Injuries of others.
Book IT. When indeed the laws of a ftate are fo exceedingly v^y^v^'X^ defective as to provide no redrefs for affronts, and ^^ ;^^^ ^^, very contumelious injuries of our fellow- citizens; or iu(U hi corrupt i^Q^ calumnies, which muO: deeply affe6l that natural defire of honour, and averiion to contempt, prmciples. which it is the interefl: of every ftate to cheriih in it& members ; and when a prevailing tho' imprudent and wicked cuflom has fupplied a remedy, the only one perhaps remaining againft thcfe injuries which are much more o-i'icvous, and fliew a more wicked and hoftilefpirit in the injurious, than thofe violations of property which we may repel by the death of the in- vader, wherever the magiftrate cannot interpofe, the plea for duelling may appear more favourable. If de- clining to embrace this remedy generally received, will give a fan6tion to the calumny, and further en- courage the invader of my reputation, and others of like difpofitions, to repeat their infults, and extend them to others ; and at the fame time betray, in the judgment of all around, fuch a mean love of animal life in me, and a preference of it to all honour and cfteem among my fellows, as muft be difapproved by ingenuous minds; I may have as ftrong plea of ne- celfity in fuch circumftances : nay fome high fpecies of moral oblio-ation, where one could overcome all perfonal animrofity or refentment, may often feem to perfuade a good man to hazard his own life in affer- ting his character, and freeing human fociety from fuch infolent and injurious invaders of what is juftly of higher eftimation than our external property. What-
Rights arifingfrom Injuries of others^ ic i
ever guilt there is in fuch conducl, it is certainly Chap. ly. chargeable principally on the legillator, for fuch ne-^^>^V^^-^ gligence about the defence of the citizens in their deareft rights, as forces them upon fueh meafures.
VII. But we Ihould always bear in mind that what J^^'ff'ff^f
, , , aUjnjt v'.okecc.
alone can juitify violence mufl: be its reference to the grand ends above-mentioned. When the injurious have offered reparation, complied with all our juft demands, and fubmit to whatever punifhment pru- dent arbitrators ihall judge neceflary to deter others, we then have obtained all the jufl: ends of violence ; and to perfift further in it, mui1: be cruel and unjuft. Thus that fide which began a war with juftice, ceafes to be in the right, the inilant it perfifls in violence af- ter the reafonable terms of peace are offered by the other fide.
Where injuries cannot be repaired or fully com- jn.t h due penfated, yet we ou2:ht to do all that we can. If one has '"'^'"■', '""/''■''
i ^ J O reparation ts iirt'
unjuftly taken away life, yet not in fuch a manner d^^p^P^^- expofes him to capital puniihment, he is bound to the utmofl: of his power to compenfate the lofs to the family that fuffered, by all liberal and friendly offices. If one is become bankrupt by his own vices, or ne- gligence, and cannot pay his creditor, he is bound to apply all his labours to their fervice ; they have a per- fe6l right to them.
The laws of fome ftates are llrangely inconfiftent. Tmpr,u^n:t hws If one by flealth wrongs his neighbour in a trifle, the '"'"■^' punifhment is capital. If another by a courfe of ex- travagance and debauchery; or by the groffcft negli-
JQ2 Rights anfingfrom Injuries of others.
Book IL o-eiicc, ruins all who have been fo friendly as to truft him ; nay fraudulently takes up loans from friends when he knows himfelf to be infolvent ; there is no other punllhment than a foolifli one, which burdens either the ftate, or the creditor, a conftant imprifon- ment. And no other pretence for this than that fome are bankrupts without any fault of theirs. Why fhould fuch men be imprifoned ? Is there not an eafy me- thod of tryal in this cafe, to diftinguifh fuch as inno- cently fail, from thofe who are ruined by their vices? We commit our lives to juries in other matters : a iury of judicious neighbours could examine into a man's flock when he began; could infpe(5l his books, and examine witnefTes upon his condu6l and manner of life; by which they could find what the calamity was owing to. If to unfortunate accidents, without o-rofs negligence, debauchery, or vanity ; the misfor- tune fliould be born patiently by the creditors, and the debtor be at liberty; only obliged to difcharge his debts whenever he was able; and to apply any profits he could make beyond a moderate maintenance to the difcharee of them, if the creditors infifted on it. But as to thofe who are bankrupt through their own vices, as they are often far worfe criminals than thieves, and do greater wrongs, a capital punilhment, if it could do any good, would be no more cruel in the one cafe than the other. To condemn them to perpetual fla- very would have a better effect ; in contributing a little to repair the wrongs they had done^and to deter others by the example.
Rights arifingfrom Injuries of others, lo-*
VIII. The originals of thefe ordinary rights, and Chap. 15. the contracts on which they are founded, will fhew alfo '"^^'Y^ how they are abolilhed. The feveral ways may be re- ''^'''^^''• duced to thefe three clafles. i . Preftation or fulfillino- the claim, either by the perfon himfelf, or by any other .in his name, by commiflion from him, or for his be- hoof. No creditor is bound to transfer his claim upon his debtor to a third perfon without the debtor de- fires it, or it be plainly for his intereft ; this third per- fon may have a malicious intention of diftrefllng him : but upon the debtor's defire he muft accept of pay- ment of any common value or fervice from the perfon whom the debtor appoints. In homages indeed, or fer- vices of honour, the dignity of the perfon who pays them adds much to the value: and, in works of genius, the ingenuity of the artifl: is chiefly regarded. In thefe the perfon obliged cannot fubftitute another, without confent of him to whom they are to be performed. Un- der this head are juftly included compenjations ; which are juftly made when two perfons are mutually cre- ditors to each other in equal values on different ac- counts. .
2. Another way of abolilhing rights and obligati- ons is the voluntary remifllon of the perfon who had the claim, where the right was wholly conftituted for his behoof, and no law prohibits fuch remifllons ; and they may either be gratuitous, or for fome * onerous caufe.
* Such as delegatioJ! : when the debtor transfers to the creditor his equal claim upon a third perfon ; or quits fome equivalent claim he had upon his creditor, or fome friend of his.
iQA Gaieral Rights of MA'NKii<iD.
Book TI. ^. The third way is by the defecfl of fome condi- tion upon which the obHgation was fufpended; under which w€ may include the perfidy of one party, which fets the other free if he pleafes. Among the condi- tions the defeft of which may make obUgations void, the life of either party may be one, or his continu- ance in the fame ftate or office in fome contra6ls. Such contra6ts or obligations as prefuppofed a certain ftate or office, or refpectcd only the life of the perfon ob- liged to any payment or performance, fo as not to bind his heirs, expire along with him, or when he lo- fes the ftation prefuppofed. Such as regarded only the perfon who had the claim, and were not coniHtuted for the behoof of his heirs, expire in like manner up- on his death. It may always be known from the na- ture of the contract or promife, or other foundati- ons of the feveral claims, whether they are extinguilli- ed by the death of either party, or not.
CHAP. XVL
Concenihg the general Kights o/^ Human Society, or Ma?ikind as a Syftem,
Rights ofinati- kind as a fyjicm
■H
Itherto we have confidered the riohts and obli-
o
gations pecaliarly refpeding certain indivi-
duals, and conftituted for their happinefs, in confi- ftence with and fubferviency to the general intereft. But as wc not only have the narrower kind affections, and a fenfe of duty in following their motions by good
Ge/2eral KiGHTs o/^Mankind. io/^
offices to individuals, and by abflaining from whatCir^r. i6. may hurt them, but more extenfive affe6lions toward O'^V^.; focieties and mankind; and an higher fenfe of oblio-a- tion to do nothing contrary to any publick intereft, there are many obligations of a more extenfive kind upon men to confult the general intereft, even where no particular perfon is more concerned than others; and mankind, as a fyftem, feems to have rights upon each individual, to demand of him fuch conducl as is neceffary for the general good, and to abflain from what may have a contrary tendency, tho' the wrono- conduct no more afFe61s one individual than another. Of thefe rights and obligations fome are of the per- fect kind, where compulfion may be juft; others are of a more delicate obligation, not admitting compul- fion, where our duty muft be left to our own prudence and fenfe of vh-tue. Of the perfect kind are thefe fol- lov/ing. •
I . As each Individual is a part of this fyftem, the Toj^nvctfii- happinefs and duration of which depends on that of its part; as every one may be of fome fervice to others infociety, v/ereit only by advice and example, if they have fuch difpofitions as they ought to have: as we are formed by nature for the fervice of each other, and not each one merely for himfelf ; each one is ob- li2:ed to continue in life as lonQ- as he can be fervice- able, were it only by an example of patience and re- fignation to the will of God ; when no important in- tereft requires his expofing his life to dangers. Human fociety has a right by force to prevent attempts of
Vol, II, O
Cldi,
io6 General Rights o/"Mankind.
Book ii.fmcidc from any unreafonable dejedlion, or melancho- 'v./VVj ly, or chagrin ; and thefe general rights of all, each one as he has opportunity, by what afTiflance he can obtain, may juMy execute. No other bond is requi- fite to intitle a man to interpofe in fuch cafes, but the common tye of humanity. Did fuch immoderate paf- fions prevail; were fuicide deemed a proper method to efcape from the ordinary vexations of life, or from the fevere chagrin upon difappointments, and were there no reftraining fenfe of duty ; many of the bra- ved fpirits might ralhly throw away thofe lives, which might have become joyful to themfelves, and ufeful and ornamental to the world. Mankind have a right to interpofe againft fuch rafh defigns. ^ ^ r r n. Another general obligation on the individuals hn:aaract. toward thc fyftcm, refpedls the continuing the hu- man race. Such as are not hindered from domeftick cares by fome more important fervices to mankind, feem obliged to contribute their part to this impor- tant purpofe, by bearing their fhares of the burden of educating human offspring, if they are in fuch cir- cumftances as enable them to do it. This duty how- ever, mufi: in a great meafure be left to the prudence of individuals: it would fcarce be wife in any fociety to compel them to have offspring, whether they de- fired it or not; tho' there may be flrong reafons for making celibacy burthenfome and difhonourable. In this matter, and that above-mentioned of preferving our own lives, nature by powerful inftinds implanted has pretty generally fecured the performance of our
Ge^ieral Kicms o/'Mankind. 107
duty. Such inftindls however are fo far from preven-CnAP. 16. ting or fuperfeding the notion of moral obhgation, ^^-^^W^ that they ftrongly eftablifh it, and are the mofl direct indications of it.
But as to fuch as defire offsprino;, or are the occa- ^"^''"'p'^n-
^r o' rents to fjfport
fions of their coming into being, as they are under ''■"''^*'''^"'''' moft facred obligations, indicated abundantly by the parental affedion, to give fupport and education to their offspring, and to form them into proper mem- bers of fociety; fo mankind as afyftem, and every fo- ciety, have a right to compell them to difcharge thefc offices. They have a like right to prevent fuch ways of propagation as would make a proper education im- pra6licable, by leaving the fathers uncertain, and thus cafting the whole burden of it upon the mothers. 'Tis. the intereft of mankind to prevent fuch abufes, even tho' the deluded mothers voluntarily yielded to the enfnaring: folicltations. Of this more hereafter.
Mankind as a fyflem have a like right to prevent to prev.-rt aii any perverfions of the natural infl:in6l from its wife "''"'^'''"" '"^• purpofes, or any defeating of its end. Such are all monftrous lufts, and arts of abortion.
III. There is a like right competent to mankind, to pn-vcut tii and an obligation on each one, that nothing ufefull^^jf^^/'"' to men fhould be deftroyed or fpoiled out of levity or ill-nature ; tho' no individual, or fociety, has a more fpecial right in it than another: that nothing ufeful Ihould be deftroyed, even by thofe who had acquired property in it, without any fubferviency to fome plea- fure or conveniency of theirs. To do fo muft evidence
O 2
loS Ge/ieral Rights o/MAt^Kit^D.
Bo ox II. an envy or hatred of the reft of mankind. Thus foun- ■^,^,^'^\j tains Ihould not be flopped or poifoned ;. no ufeful pro- du61s of the earth, which many ftand in need of, fhould be capricioufly deftroyed by the owners, becaufe they have abundance other ways for their ufe: no noxious creatures ftiould be brought in, and turned loofe in places formerly free from them. T- ■•,,-. IV. 'Tis alfo therio;ht and duty of the fyftem which pMng all i'-y«-each one ihould execute as he has opportunity, to af- '"-T"'-' fill: the innocent aganiu unjult violence, to repel the invader, to obtain compcnfation of damage done, and fccurity againfl like attempts for the future. With- out this right all the enjoyments of men would be very precarious, fince few could confide in their own llrcngth to repel the combined forces of any cabals of rhe injurious. As the example of fuccefsful injuries tends to invite others to like pra6lices, 'tis requifite for the general good that this bad influence be eoun- tera61ed as often as poflible, by the infliding of fuch evils upon the injurious, as by their terror may over- ballance in their minds, and thofe of others who may liave like difpofitions, all allurements to injuftice from the hopes of fecrecy and impunity. This is the foun- dation of the right of puniihing, which, as we faid above, men have in natural liberty, as well as in civil polity. The miftakes and inconveniences which may jnore frequently attend the execution of this right in natural liberty, do not take away the right, but Ihews ::^'iui force x^CiQ: great ufe of civil polity.
Y» A like right we may iuftly alTcrt to mankind
General Ki g h t s o/" M a n k i n d. 105
as a fyftem, and to every fociety 6f men, even before Chap. 16, civil government, to compel any perfon who has fal- O^^v^v^ len. upon any fortunate invention, of great necefTity or ufe for the prefervation of life, or for a great in- creafe of human happinefs, to divulge it upon reafon- able terms. The inventor, no doubt, may have a rio-ht to makelarpe advantaQ-es of what his dilio;ence, inee- nuity, or felicity has difcovered; and is juftly intitled to a compenfation for this advantage, in proportion to the good it brings to fociety, or the labour which the invention may have coft him, or the profit he coukl have made by it. But if a man is exorbitant in his demands, or fo inhuman as not to employ his difcor veries v\^here they are w^anted, or will always retain the fecret to himfelf, fo that it muft perifh with him; if the matter appears to be of great importance to man- kind, a fociety has a right to compel him to arbitration about the proper compenfation to be made for the dlf- covery ; and to force him, upon juft terms, to make it,
YI. 'Tis juftly alfo reputed a right of human fo- .-^njito/ro.:. ciety.to compel each perfon to fuch labours and in-/';;'JLr7" *' duftry as he is capable of, that he may not be an un- neceffary burden upon the charity or compaflion of the induftrious : to compel parents fo to educate and habituate their children, that they may be able to fupport themfclves, while they continue in health. Enough is allowed to the natural liberty of mankind, and the parental power, that men m.ay chufe occupa- tions as they incline for themfelves and their children. Bat as the univerfal diligence of all i$ plainly requl-
ujrrj.
mrats.
110 General KiGVLT?> o/'Mankind.
Book IT. fitc for the good of mankind, each one Is bound to L/VX^hls fliare of it, and is juflly compelled to it, unlefs he can give fufficient fecurity to the fociety that he fhall be no burden to it. A like right any fociety has to exercife the parental power over orphans, in educat- ing them to fome ufeful induftry, and obliging them to fuch reafonable fervices after they are adult, as may defray all prudent expences made upon them, and for their behoof, during their minority. Th: righis pffa. VII. Ouc may juflly reckon among thefe rights of human fociety that one alfo of preferving a jufl vene- ration toward the dignity of our kind, and prevent- ing any practices which would tend to make it defpi- cable in the judgment of the vulgar •, or which would have a tendency to introduce favage and inhuman difpofitions. The dead carcafes of men can have no rights, and yet 'tis plain men cannot fo entirely feparate in their thoughts the body from its former inhabitant, as to be unaffe6i:ed with the treatment of the body. All nations have exprefled their affecftionate or grate- ful remembrance of the man, by fome rites or other deemed refpecStful toward the body: and repute fome forts of treatment of dead bodies as inhuman and fa- vage, exprefling either hatred and contempt of the man, or a difrefpe(5l in general for our fellow-creatures. Every fociety therefore ihould prevent fuch pra6lices as would incourage favage manners, or fuch as are the ufual teftimonies of contempt and hatred, toward any who have not by their vices incurred the juft ab- horrence of all good men*
General Rights ^Mankind. in
VIII. Thefe and many of like nature we may count Chap. 1 6. the perfect riQ-hts of mankind. There are others l"OCV
■» ^ O ^ Imperfi-ft rights
of the imperfe6l kind, to be left generally to the pru- of mankind. dence and virtue of perfons concerned, to which cor- refpond the general duties or offices incumbent on each individual toward mankind in general, previous to any fpecial tye. The fame general maxim holds in thefe rights which we obferved about the rights of individuals, viz. " The fulfillino; or not-violatino; the " perfed: rights, argues rather mere abfence of odi- " ous vices, than any laudable degree of pofitive vir- " tue : whereas the matter of praife, and the natural " evidence of high virtue conlifts in a ftricl regard to " the imperfe6l rights."
The offices indefinitely due to mankind are ever incumbent on all while the fyftem remains, however they are fubdivided into feveral difl:in6l ftates or poli- ties. The duties are not taken away in a civil flate, but the exercife of them may be limited as far as the po- litical relation and the intereft of the ftate may re- quire. The more extenfive affections, of which we find our nature fufceptible, and that high fenfe of ap- probation attending them, plainly fhew our obligati- ons toward mankind as to the following duties, tho' no one individual had a more fpecial claim upon us than another; and therefore we may conceive them as anfwering a general right or claim of the fyftem upon each of its members.
Firft, each one is obliged to cultivate his own powers ^'' ^^^-^ '» of body and mind fo as to fit himfelf for what officejs Xir'/'"^.;;^
112 G'e^?eral Rights o/'Mankind.
BookII. of goc>'^i"^^^s and humanity his ftation may allow; 'to v^^y^V'VJ ftore his mind with ufeful knowledge, and with the grand maxims which conduce to a virtuous life; to acquire virtuous habits, and a power of retraining all the lower appetites and felfifh pafTions, which may op- pofe them ; and to prepare even his body by tempe- rance and exercifes for fuch honourable fervices as his mind may recommend.
Ao-ain : as men are much influenced by example, exav,pie in their ^xi^ ourfcvcral aiFeaions are naturally contagious, tis oor duty to the pubhck m our whole deportment to lliew an example of all kindnefs, courtefy, and in- clination to oblige and afTift any of our fellows, where no duty of more importance, or fpecial claim of fuch as we are more "nearly attached to, calls us away : we Ihould acquire habits of this focial kind ; and guard againft whatever may irritate our fellows, or alienate their affections from us, or from each other, or caufe animofities and ill-natured pafTions among them. No wonder that courtefy and good-manners are fo enga- ging; they are the natural drefs of virtue, the indica- tions of thofe affeclions which are truly honourable and lovely. The feveral duties in confequence of fuch difpofitions may anfwer to the particular rights of in- dividuals, but the preparing the heart, and acquiring the habit, is an indefinite duty toward ail. Tcdifufipyin- 'Tis alfo our duty to our kind to diffufe as far as "^'''"■^^"^''"' we can the principles of virtue and piety, which fhew that univerfal goodnefs is the true intereft, dignity, and perfection of each individual ; as the univerfal pre-
General Rights (j/'Mankind. i i >
valence of fuch fentiments is the o-rcateft advantage Chap, 16. to human life. We fliould concur in every wife in-^-^^^'"'^ ftitution for this purpofe : our whole converfation fhould evidence this perfuafion, and fhew it to the world that wealth, power, or fenfual pleafures, arc not the fupreme objects of our purfuit for ourfelves, or fuch as are dear to us : that the covetous, ambiti- ous, or voluptuous are not the perfons whofe ftate or temper we count happy. And thus on our. part we may contribute to prevent or break thefe groundlefs aflbciations and falfe imaQ-inations diffufed among: men by the vicious.
IX. Tis alfb the duty of each individual toward man- [i^^-^f^tft kind, as well as -toward his peculiar friends or relati-"*'"''^'^- ons, to follow fome profefhon or bufmcfs fubfervient to fome common good. Men of wealth fufficient for themfelves and their families, are not perhaps obli- ged to any lucrative profefTions ; but they are rather more than others obliged to an a(5live life in fome fer- vice to mankind. The publick has this claim upon them : the divine providence calls them to extend their views of publick good, in contriving wife forms - of polity, or prudent laws; in encouraging the more ingenious and ufeful arts ; in fupporting diftrefTed in- nocence; and employing all their weight and influ- ence in fociety for fome generous purpofes; as they are exempted from the lower and lefs honourable em- ployments. When they are deaf to this voice of God_, and give themfelves up to floth and fenfuality, they are ufelefs and corrupt members of focicxy, unworthy
Vol. II. P
HoMf ve .■'re to
II A General V^i GUTS o/'Mankind.
Book 11. of that external deference they expe6i:: and Indeed 'tis only outward ceremony andbafer flattery they re- ceive; for they muft be inwardly defpifed by all wife men.
In chufmg a profelTion or bufmefs for life, regard
chufiouri..jh'.,fifi^Q^\^ be had to thefe two things, the dignity or ufe of the bufinefs, and the probability of our fucceeding in it. Tho' the nobler arts are more defirable in them- felves, yet 'tis plainly neceflfary for mankind that far more hands be employed in the lower; and as a few hands are fufficient for the nobler arts, fo there are fewer whofe genius and circumftances promife fuccefs in them. Nothing is more uneafy to a man of any fpirit, or fenfe of honour, than to be ingaged in a charee or office for which he has not fufficient abili- ties ; as he muft be continually expofed to envy, and to juft cenfures. 'Tis a man's own intereft for his in- v/ard peace of mind and his reputation, rather to be placed lower than his merit and abiUties, than to be fet in a ftation too high for them. This folly or va- nity of aiming at flations or offices too high for us, is alfo injurious to fociety ; as the office will not be well difcharged by us, and worthier men by our means ihall be excluded. T^..;,-.;.'/./ The dignity of arts or occupations depends on
■!,'/'"",};'''-'■ thefe two jointly, the ufe they afford to mankind, and the genius requilite for them. The profeflion defigned to inculcate true principles of piety and virtue is al- ways juftly ranked among the moil honourable on both accounts. The corruptions and depravations of the
General Rights ^Mankind.
befl things may become moft pernicious. Such is this Cn office when it is abufed to inculcate pernicious fuper- flicions, to foment hatred and rancour about trifles, or made a ilep to ambition, avarice, or luxury ; or an engine of tyranny and opprefTion,
Legiilators, magiftrates, adminiftrators of juftice, or fuch whofe bufinefs it is to prote6l innocence a- gainft fraud and opprefTion, have honourable offices, both as they are exceedingly ufeful, and require great abilities. The military offices are honourable for the fame reafons. But nothing is more deteftable than when thefe employments are perverted to the op- pofite purpofes, and are engines of tyranny, injuftice, or cruelty.
On the fame accounts the profefTions of the arts and fciences which afford fublime pleafures in theory, and great ufe in the practice, are juflly honourable ; fuch as mathematicks, natural philofophy and hifto- ry, medicine, and others. The arts of fculpture, pain- ting, drawing, mufick, and elegant and magnificent architedure ; tho' they are not fubfervient to the ne- cefTities of life, yet have always been reputable in ci- vilized nations for the refined pleafures they afford, and the elegant genius requillte in the artifl.
The lower mechanick arts are of great ufe in life, but they are not fo much admired ; becaufe talents fuf- ficient for them are more common. And yet men em- ployed in them may be truly honourable in the highefl: deo-ree for moft eminent virtues. Of thefe aericul- cure has been generally moft relilhed by the finell fpi-
P 2
IIJ
A?. I5.
ii6 Ge/?eral Rights o/'Mankind.
Book II. ncs, HOC only for its * advantages, but alfo for its de- '^/^V"^^ light ful contemplations, variety of fweet exercifes> and innocent pleafures.
The probability of fuccefs In any profefTion or art '^''^'^■'^'^' depends on many circumftances. The advantages of fortune, the conftituclon of health, the authority of parents or friends, our opportunities, and, above all, the impulfe of our genius. Fortune without ge- nius never fucceeds well : a genius often furmounts the oppofition of fortune. In thefe conflicts our ge- nius, tho' mortal, feems the vi6lorious divinity, and fortune only a mortal, as Cicero f expreffes it.
We fhould always repute it as our bufmefs in the world, the end and purpofe of our being, our duty eo our kind, the natural ufe of the powers we enjoy, and the mofl fuitable teftimony of our gratitude to our Maker the parent of all good, to contribute fomcr thing to the general good, to the common fund of bappinefs to our fpecies.
The more fpecial duties to particular focieties in che adventitious ftates and relations, are the fubjcft of the followinf>; book.
^Cicero dffcneclnle> c. 15, 16, 17. f Ueofficiis. l.i. c. 33.
117
Chap. 17'
CHAP. XVn. ^w/'V^^
T/je extraordinary Rights arifing from fome fingnlar
Necessity.
I- ^l/E have hitherto confidered the common laws ^'^f^'^^^^^ <^f' ^ ' or nature, and the ordmary duties, ^^^xxv] juiu', tu nr.r, difcovered by fome.ofthefe narrower afFedions of the''" foclal kind which are the immediate objects of ap- probation, and partly by the more cxtenflve ones, which w^e approve in an higher degree. It was often obferved above, that the more extenfive affections arc naturally defigned to control! and limit the narrower, and that the heart can fully approve itfelf in its calmi- eft reflexions, when it has eounteracled the warm mo- tions of parental affection, pity, gratitude, fricndihip, in order to gratify fome more extenfive generous af- fection; tho' thefe narrower affections are in their own nature lovely, and the conftant object of approbation when they do not interfere with any more venerable ex- tenfive affection. Now 'tis manifeft to all men of under- ftanding,w^hoarenot culpably deficient in the more ex- tenfive affections of foul, that many unufaal cafes may occur in which our counteracting the ordinary dic- tates of natural affection, pity, gratitude, or friers!- fliip may in the whole of its confequences do greater good, and prevent greater evils, than adhering to them inthofe cafes. Nay that adhering to them in thofc extraordinary cafes may fometimes occafion i^reater evils to our country, or to mankind, than all the virtues
1 18 T/:e Rights o/'Necessity.
Book II. any one mortal can exerc will ever repair: all which ^-^^"V^^ evils might have been prevented by our receding in thofe extraordinary cafes from the ordinary rule foun- ded on thefe narrower lovely afFe6lions. 'Tis not con- ceivable then that in fuch cafes any principle in our hearts can juftify our facrificing the moft important and extenfive interefts of mankind to the fmaller and narrower; or that upon reflexion one could condemn himfelf for a contrary condu6i:, in following the moft extenfive affeflions, which the heart muft more ap- prove than any of the narrower, as they are aiming at a more important good. To fuppofe fuch a conftitu- tion of foul would be as abfurd with a view to the pub- lick fyftem, as it would be in refpe6l of the private fyftem in point of prudence, if one approved himfelf in gratifying any trifling appetite fuch as thirft or itch- inp-, when this indul2:ence occafioned certain death, and thus defeated the grand feliifli determination to- ward our own prefervation and happinefs. jiZiZTcM- To retain every amiable difpofition of the foul frcfcdha 0^'^' -^hich can rive an entire felf-approbation, in our coun- teraffing thefe narrower generous aneclions, tis e- nouQ-hthat we feel all thefe narrower affections in their juft proportion of ftrength, fo that they could excite us to all wife and generous offices of compafTion, gra- titude, and friendlhip, tho' attended with great ha- zards or expences to ourfelves, and could furmount our merely fellifh pafTions ; while yet they are fubjec- ted to the nobler and more extenfive affections of the generous kind. To acl the part which we are per-
The Rights o/Necessity. ii<)
fuaded tends to the moft extenfive good, in oppofiti- Chap. 17. on to all narrower interefts, with an heart quite infen- "^^^"^^"^ fible to thefe amiable narrower affections, can fcarce gain our entire approbation. Some lovely parts of the natural ftruclure of the heart are awanting, and the beneficent office may in fuch tempers argue no great ftrength of the extenfive affection: whereas when all the narrower kind affections are in their due ftrength, and yet a more extenfive and venerable principle re- folutely countera(5ls their motions, the foul feems in its natural order \ and muft have an entire compla- cence with itfelf, as it feels every difpofition within which it naturally approves, and that too in its pro-
per ftrength. ^ ^ h-^/*. r^^.
II. For the further illuftration of this fubje6l let us ,, u-J,[r!7}. recoiled how it is that we difcover the fpecial laws of '="'"^- nature. We have no univerfal precepts enuntiated by God, in words, binding us in all cafes v/here God does not by words declare fome exceptions. The laws of nature are inferences we make, by refleding upon our inward conftitution, and by reafoning upon human af- fairs, concerning that conduct which our hearts natu- rally muft approve, as tending either to the general o-ood, or to that of individuals confiftently with it. Thefe inferences we exprefs in general precepts: they are difcovered to us fomecimes immediately, fome- times by induction, when we fee what conduct ordi- narily tends to good. Now 'tis impolllble for us to have all poffible cafes and circumftances in view, fo that we could difcern tliat the inference holds in them
120 ' T'/'^ Rights (^Necessity.
Book II. ^'1- We form our general rule or precept from what Vw/^/'Nw' we fee tends to good in all ordinary cafes. But fhould we fee that in fome rarer cafes a different condu6i would in the whole of its efFe6ls do greater good than the following the ordinary rule in thefe cafes alfo, we then have as good a law of nature preceptive or per- rnifTive to recede from the ordinary rule in thofe rarer cafes, as we have to follow it in ordinary cafes. Thefe cxccptioils are parts of the law, as well as the gene- ral rule.
«■
Tw» ga-.cr^i The -two general .precepts of piety to God, and pro- T"/ihr.s"" ''moting the general good of all, admit of no excepti- ons; as they prcfent to the mind the immediate objedls of the higheft approbation. The fecond of thefe is the foundation or ground of all the exceptions from the more fpccial laws. We muft not imagine or fpeak thus, " that a great necefTity, or a publick inter eft, *^ makes it lawful to fin, or to break certain laws of *vGod. and nature.'* Such propofitions contain con- tradi61ions in their terms. We fay, that " fuch con- *' duct as in ordinary cafes would be vicious, and con- trary to law, does in fome rarer cafes of jQeceifity be- come good and lawful ; " or that ^^ thefe rarer cafes are excepted in the general law,"
Improperly , I- HI. Thtie arc Innumerable cafes In which if we
eilged C( viccjfity.
ujged cafes of ^^^, confidcr the immediate effect, it were better to recede from the common rule ; and yet the allowing a liberty to recede from it in all like cafes would oc- cafion much more evil by its remote cfFc6ts, than the particular evils in adhering to the ordinary rule. Thefe
The Rights ©/"Necessity. 121
are not the cafes of necefTicy here intended. For in Chap, i 7. ftance. A man has made an imprudent bargain of '^-^^v^V^' greater detriment to himfelf than of advantage to the other party, and yet the other party inhumanly in- fifts on it. In the immediate efFed, it were better he did not obferve his contracl. But fuch cafes happen fo often, fo many would ufe this plea upon trifling miftakes and inequalities, men would grow fo carelefs in their dealings trufting to this redrefs, and fo many vexatious difputes would arife, that all faith in com- merce would be deftroyed; not to mention the in- ward immediate diflike every man mud have of fuch breach of promife, and fuch inconftancy, for every trifling intereft. The performing therefore of what we contraded, according to the general rule, muft be our duty even in thefe inconvenient cafes, when the other party infifts upon it ; becaufe of the greater re- mote evils which would enfue from violatins fuch contracts.
Where one asks us improper quefllons, where it were better that the truth were concealed from him ; if our filence would difcover it, and no true evafive anfv/er occurs to us; did we only regard the imme- diate effeci:, it might appear eligible to fpeak contra- ry to our fentimcnts. But the inward averfion we feel to falfhood fhould of itfelf diflliade us from it upon fuch occafions ; and the diflant effecls of allowinp- fuch liberty, for every fmaller advantage, or to avoid any little inconveniences, are fo pernicious, that we mull condemn falfliood on fuch occafions ; fince were it al-
Vol. IL Q_
122 The Rights (j/'Necessity.
Boo: I [.lowed, there would be fuch frequent ufe made of it ^-^^^''^^-^ chat there would be an univerfal fufpicion of all con- veriacion, and all mutual confidence in it be deftroyed. lliefc therefore are not the intended cafes of necefTi- ty exempting from the obligation of the ordinary rules. wy-cnihepua This plca therefore is then only juft, when the ;".?. ' ^ whole good effects of receding from the ordinary rule, whether immediare or more remote, are fo great, and the evils enfuing upon our adhering to it in thofe ra- rer cafes fo pernicious, as will in all probability over- ballance all the evils to be apprehended from our coun- teracting the rule in this and fuch like rarer cafes. Receding from fuch rules for every fmaller prefent advantagc,or for avoiding fmaller inconveniences,muft be very faulty. Such liberty, generally taken, w^ould be highly pernicious, deltroying all honefty and mu- tual confidence. But the cafe is otherways when men claim this liberty only for very great publick advan- tages, or for prevention of fome extraordinary cala- mities. This liberty allowed or afferted only in cafes of the utmoft importance, will not be mifapplied to every trifling private inconvenience, except through fuch unfairnefs and depravity of temper as would make one violate an acknowledi^ed law of nature un- der fuch temptation, even without any tenet about thefe fmgular rights of necelFity. rJl'admM \f IV. 'Tis plain here that fome of the ordinary rules J^//v."T/"Io^i'C of much greater importance than others; fo that orehr, i'>,^<,r- f^y^TQ^i- Q^fQs cau poflibly happcii Vvlicrcin fuperioi ad-
T'/id' Rights o/^Necessity. 12'
vantages can accrue to mankind from counteraftingCnAp. 17. them. The more important any rule is, and the great- "^y^^^-J er the evils are which obedience to it prevents, and which enfue from the counteractino; it, the o^reater al- fo muft be thofe evils to be declined, or advantages to be obtained, which can juflify the receding from It. Some rules are made fo facred by the m.oral feel- ings of the heart, and by their continual great impor- tance to the publick good, that fcarce any cafes can happen in which departing from them can occafion in the whole fuperior advantages to mankind ; or, which is the fame thing, fome laws of nature admit no exceptions. But other laws are only morally uni- verfal, holding in all ordinary cafes, but admitting fome exceptions. To deny all exceptions, upon pleas of necefTity, contradicts the fenfe of mankind. In fome laws of lefs importance to the good of men, pleas of necefTity are allowed valid by all. As we afcend to more facred and important laws, the matter grows more doubtful whether any neceihty can found a juil: exception.
'Tis an ordinary law that " no man fnould ufe or Rx,,„ph-s ./ " deftroy any part of another's property without his ' '^'"'^"" ^^ confent." Suppofe a good man flying from a mur- derer, from v/hom he cannot efcape on foot: he fees a neighbour's horfe, but the neighbour is abfcnt, or is fo inhuman as to refufe the ufe of him. The takine his horfe in fuch a cafe is juftifiable, tho' the bead fhould be fpoilcd, or killed. A populous city or coun* cry is indangered by the failing of a dam or dyke, and
124 ' 77?(? Rights o/'Necessity.
BookII. the lives as well as the fortunes of thoufands of in- C/'^VXj nocents are at ftake. There is ftore of timber fit to fapport and repair it, at hand; but the proprietor is abfent, or refufes the ufe of it, and the danger is im- mediate, allowing n.o time to obtain materials elfe- where: 'tis no crime to difregard property in fuch ca- fes. The immediate feelings of our hearts juftify it, as well as a compalTionate regard to a greater good. ^,. , We muft never, indeed, extend this pretence fur-
This fUi ex- ^ ' ■•■ .
tn^pts net fr:m ^l-^QY than thc ixal necclTity extends. The primary pcnj:,tc jjwa. rl^/jt of thc proprlctor in the cafes above-mentioned, ^"' muft yield to a great necelTity ; but \\is fubji diary right
to compenfation of the lofs he has fuftained for the fake of others, may remain when the necefTity does not extend to it. They are obliged, as far as they can, to make full compenfation, who are faved at his ex- pence.
V. 'Tis vain to juftify fuch fteps only by fbme \ c- peru}il/to'civ,:xmna\t rights of civil governors over the goods of fub- jccts. The pleas of necefTity have the fame juft foun- dation in natural liberty, upon fome plain tendency to fome important intereft of mankind. The right of macnftrates is founded only in this, that the executi- on of the rights of the people m fuch urgent necef- fities is committed to them, as is alfo the violent de- fence and profecution of all their other rights : from which none can infer that all right of violent defence or profecution is derived from civil polity. Were tliere no juftifying pleas of necefTity in natural liber-
t D'.inhiinm cinincr.s, or as others more properly call it, Jus imperii emincau
Pc'in.
77;^ Rights (5/^Necessity.. 125
ty, there is no accounting for this eminent right ofcuA?. 17.
magiftrates in civil polity. L/^VN->>
Come to higher cafes. A fhip loadened with provi- somH^icrca.
{ions and ammunition comes into the port of a citvun-^''" "' *° ^'"
-t J pcrty,
juftly and cruelly bcfieged, where a mafTacre is intend- ed by the befiegers ; fuppofe the citizens almoft pe- riihing with famine and wanting military ftores, and having neither money nor goods which the merchant would take for his grain or ammunition, whereas he can get an high value from the befiegers. Muft the townfmen here regard his property, and expofe them- Celves to periih with their families, either by famine, or a mafTacre ;, nay perhaps expofe a whole nation to the moil: cruel flavery ? No certainly. They may juft- ly take thefe goods by force, tho' there be the great- eft hazard that they ftiall not be able to compenfate their value ; fince if the city is taken, they are all ruined.
'Tis a facred law of nature not to take away the- life of an innocent man, or exclude him from any me- thod of felfprefervation in his power; fuppofe I know that a man juft landed is infected with the plague, and furious; that he is runnino; into a throne afiem- bly, that I know not their language to warn them. I can preferve the lives of thoufands by ftiooting this man, who yet may polTibly recover. Can this be a crime, if there was no other way of prefer ving thou- fands of innocent men and their families from the in- fedlion that is fo generally fatal? Laws prohibit un- der pain of death any perfon to come afliore from a
And life.
126 The Rights o/'Necessity.
Book II. ftip that came from an infe6i:ed place. Some of the K^r\^\j crew may be infected, and yet others remain perfe6i:ly found, who might be entirely fafe were they allowed to come afliore. Upon the very fufpicion of this dan- ger they are often kept aboard, and expofed to perifli by the infe61ion. In an overloaded boat not only goods are thrown over board without the confent of the pro- prietors, but innocent men too, while yet none can demonftrate that the boat with this over-charge could not pofTibly come fafe to fliore. rcraatj: May uot a fiugular necefTity fuperccde the com-
mon rule of veracity too. Suppofe a Genghifcan, or any fuch Eaftern monfter, refolved on the mafTacre of a whole city if he finds they have given any pro- tection to his enemy, and asking a citizen in whom he confides about this fa6l, whether his enemy had ever been fheltered by the citizens; and that by deceiving the moniler, he can preferve the lives of hundreds of thoufands, and of their innocent babes; whereas tel- ling; him the truth Ihall occafion the moft horrible llaughter : could a wife man's heart reproach him juft- ly for breaking through the common law of veracity, and conquering the natural impulfe toward it, upon fuch ftrong motives of humanity ? Nay who blames Tullus Hoftilius , or Eumenes, for deceiving their own foldiers, when it was the only probable means of their fafety, and the fafety of their country? Had ei- ther of them declined this ftep when fuggefted to them by one of their counfellors, they had juflly been charged with too high and fuperfticious an ac-
T'Z'^ Rights (^^Necessity. 127
tachment to onefpecles of morality, and that not the Chap. 17. fupreme one. Ky"V\j
Suppofe a juft prince defeated by an inhuman bru- tal ufurper, and flying with his family and the braveft men, the only hope of the ftate ; and that they get into an houfe near the fea whence they hope prefendy to make their efcape; and that the ufurper, feeing an- other party fleeing paft that houfe, asks one whom he takes for a friend to his caufe, who yet is fecretly faithful to his prince and the liberty of his country, whether the prince be fled into that houfe? To he- fltate, or be filent, on fuch an occafion difcovers the whole truth. But his fpeaking contrary to his know- ledge may prefer ve the only remaining hopes of a na- tion. Can this too be criminal?
'Tis ordinarily a crime in a fubjecl, or in any pri- vate man, to kill his fellow-citizen, tho' a criminal, without a trial. Shall we therefore condemn the glo- rious acflion of Timoleon?
'Tis horridly criminal in ordinary cafes to tempt any man to perjury, or breach of faith. But how ge- nerally do we juftify the corrupting the fecretaries, or confcfTors, of hoftile princes to betray the fecrecs of their mafters, when the fafety of our country re- quires it; or when we can by fuch means prevent much effufion of innocent blood ?
Yl. 'Tis furprizing upon what principles fome di- j.,,, „,,-,„, ,„ vines have denied all thefe extraordinary rights of ne-'^''"'"'"'-^^"''* celfity. " The common rules or laws of nature, fay " they, fliould always beobfcrved, whatever evil may
12 8 The Rights (^/'Necessity.
Bo OK 11." cnfue: nor can the highefl profpcds of advantage Ky^^^^Kj'' juftify our departing from them in our condu61:. " They argue as if certain propofitions had been ingra- ved by God on fome pillars, telling us what we are to do in all pofTible cafes, with ftricl prohibitions of de- viating from them in any cafe, unlefs where God, by fome verbal propofitions, had made exceptions; and orderino: us to commit the event to God without rea- foning about it, while we keep to the letter of the law. Nay fome tell us that ^^ we know not all the remote *^ effects of actions: fuch as appear to us of good ten- ^' dcncy may in the whole have pernicious effeds ; and ^' thofe may have good effects in the whole which ap- *' pear to us of the moft hurtful tendency." i:hfi examkcd. But thcy fliould either fliew us thefe verbal propo- fitions thus revealed ; or if they cannot, they fliould confider how we come to know thefe ordinaiy rules or laws of nature. 'Tis no other way but by the feel- ings of our hearts and judging about the tendencies of actions. If our incapacity of judging about the dif- tant effects of actions Ihould preclude all pleas of ne- cefTity ; it will alfo preclude all our ordinary reafonings about the tendency of actions, by which we difcover the ordinary laws. We iliould not take upon us, an- tecedently to revelation, to form any conclufions as laws of nature ; but follow every particular affection or kind paffion, which we naturally approve, fuch as pity, gratitude, friendlhip, at all hazards ; without con- iidering its diftant effects, about which, they argue, Ave. are not competent judges. The truth is, we mull
-HA}'. IT.
The Rights (^/'Necessity. 129
follow fuch probabilities as the conftitutionof our na- ture and our clofeft attention can fuggeft to us, both in fettHng the ordinary rules of life, and in determin- ing the exceptions in fome rarer cafes. For 'tis only by our reafonings about the tendencies of actions, and thefe fometimes pretty remote, that we arrive at thefc conclufions which we call the ordinary laws of nature.
VII. Revelation cannot exclude thefe pleas of ne- ^.^r, ;,,^,.,, cefllty, as we have no colledion of precife rules with":'^'-"^-''''^'' orders always to adhere to them contrary to all ap- pearances of publick intereft. Its precepts, except a few which relate to pofitive inftitutions, and fome points not knowable by the light of nature, prefuppofe the law of nature, and the rights and duties of men to be known, or to be difcoverable by other means, with all the limitations and exceptions. The origin, nature, and extent of the feveral rights are not ex- plained in revelation ; nor does it tell us when fuch a right or duty takes place of another. It prefents the warmeft recommendations, and the ftrongeft motives to the feveral virtues, and the moft powerful dehorta- tions from vice : but the feveral virtues and vices are only denoted in general by their common names, pre- fuppofed to be previoufly known in their true nature and extent.
The cafe is plainly thus. Our reafon fhews what Fcvehiionpn^ affions tend to the publick good; thefe we judge law-[)^';,^^,f'j^'' ful; and when they flow from the kind affections of '""'''''• the foul we approve them and call them virtues, by certain fettled honourable names. Contrary actions,
Vol, IL R
I go The Rights (^/'Necessity*
Boox II. or Ibme of the fame general clafswith the former, but w^VV^in different circumftances, tend to the publick detri- ment, and fhewabad temper in the agent; we difap- prove them, and give them the odious names of vices. 'Tis the proper office of that reafon God has given us, to obferve thefe tendencies of our difpofitions and ac- tions, and to reduce them to their proper clafles. Thus we can fettle the meaning and the extent of thefe terms, y///?/c^, mercy, charity, liberality, temperance^ fortitude, fiiccoiir, felf-defence , execution of juftice on criminals, defence of our country in war, Thefe are names of virtuous or innocent difpofitions and a6li- ons. Cheats, frauds, avarice, cruelty, dninkennefs, glut- tony, cowardice, treachery, robbery, fiealing, murder y are well known names of vicious difpofitions or a6li- ons. The Scripture prefuppofes thefe names as known or knowable in their juft extent and meaning; and by the ilrongell motives exhorts to all the virtues, and deters from all vices, without defcending to any ex- plications of them in their extent and reftridions, which are otherways difcoverable. Widest it, Abftracl from this previous knowledge by reafon w</ c- «/c- ^^^ rcfleffion, the Scripture-precepts would be of no ufe to us, as they are of none to idiots. Thou flo alt 7iot kill. All killing is not prohibited, 'tis only jnur- der. Now where is the Scrip ture-defniicion of ;;?///•- derP 'Tis our reafon muft Ihew what is the lawful, and what the unlawful killing; the lawful, is in felf- defence, in juft war, in the execution of criminals : and the fame reafon will ihew fome extraordinary cafes
77»^ Rights o/'' Necessity. igi
wherein it may be juft, for the defence or recovery of Chap. i 7. all the valuable rights or liberties of a nation. Thrju'^ (halt ^lotfiealis another precept. It does not prohibit all taking either by violence, or fecret means, what was fometime pofTeffed by another; 'tis only taking away what another has a right or property in. 'Tis our rca- fon again mufl: teach us the origin, the nature, and extent of property; and it will (hew us too that pro- perty muft often give place to fome great pubHck in- terefts. Lye not to each other, is another precept. But what is a lye ? how defined ? 'Tis not every fpeech which the fpeaker forefees will lead the hearer into a falfe opinion ; not every fentence which is falfe in its moft obvious meaning. Our Saviour often fpake in this manner. 'Tis our reafon again that mufl: fliew us what fort of fpeech hurts fociety and what not; and when it is that fome extraordinary cafes may jufliify reced- ing from the common rule. Without having previ- Gufly fixed the notion of thefe duties, and their pro- per limits, the above-mentioned precepts amount to no more than thefe vague undetermined fentences , " Take not away the life of another when you fhould " not take it away. Take nothing out of the polTefll- '^ on of another, when he fhould IHll polTefs it, or has " a right to it. Do not deceive by fpeech when it is ^' wrong to deceive." What are thefe precepts, with- out the aid of moral reafonines?
Revelation was given to rational agents previoufly made capable of knowing the rights of men, and the tendencies of actions to the good or hurt of their fel-
R 2
I 1 •> The Rights ofNECEssiTY.
Book II. lows, or of focicty, and determined to approve what was beneficent, and to condemn the contrary. It was enough, as to our focial duties, that every thing vir- tuous and kind fliould be enforced in general by re- velation with the flrongeft motives, and with the di- vine authority; and fome fuch fpecial laws given, the ufc of which to a focial life the common reafon of ho- neft men would not foon have difcovered. * It was not proper that our (loth in cultivating the powers God had given us fliould be incouraged by a revela- tion, or that we fhould be treated as children or idi- ots, who could difcover nothing by themfclves.
Thefe pleas of necefllty fome would exclude by a maxim of late received, We muft not do evil that good may come of it. The author of this maxim is not well known. It feems, by a paflfage in St. Paul, that Chrif- tians were reviled as teaching that fince the mercy and veracity of God were difplayed by the obftinate wick- cdnefs of the Jews, they fhould continue in fin that this good might enfue from it. He reje6ls the impu- tation upon his dodrine, and hence fome take up the contradicloiy propolition as a general maxim of great importance in morality. Perhaps it has been a maxim among St. Paul's enemies, iince they upbraid him with counteracting it. Be the author who they pleafe ; the fentence is of no ufe in morals, as it is quite vague and undetermined. Aluil: one do nothing for a good pur- pofe, which would have been evil without this refe-
* The enemies of revelation have ttliimphoJ fooliflilyon this fubjcLT: ; and fome of hi fiicudi; hive dcfeaJeJ it injiiditloufly;. by afciibing to it what is not its buGaefs*
The Rights (j/^Necessity. i jj
rence? 'Tis evil to hazard life without a view to fomeCnAP. 1 7. good ; but when 'tis necefTary for a publick intereft, v^/^VX^ 'tis very lovely and honourable. 'Tis criminal to ex- pofe a good man to danger for nothing; but 'tis juft even to force him into the grcatefl: dangers for his country, 'Tis criminal to occafion any pains to inno- cent perfons without a view to fome good: but for reftoring of health we reward chirurgeons for fcarify- ings, burnings, and amputations. But, fay they, '' fuch '' actions done for thefe ends are not evil. The ma- " xim only determines that we muft not do for a good " end fuch anions as are evil even when done for a " good end." But this propofition is identick and ufe- lefs, for who will tell us next, what thefe actions fome- times evil are which may be done for a good end ? and what adlions are fo evil, that they muft not be done even for a good end ? The maxim will not an- fwer this queflion; and truly it amounts only to this trifle; " you ought not for any good end to do what " is evil, or what you ought not to do, even for a *' good end."
VIII. The main difficulty is how far can this plea V' '''f"'^''"'
•/ , i r.hcut the
be extended? It cannot be refufed in many ordinary / f'^" ;/< laws about property and our common labours. Nay it may found exceptions to fome of the general laws of nature about the prefervation of life. But what a,re thefe laws which admit of no fuch exceptions ? This is one of the dejiderata in morals, and muft probably remain fo till our knowledge grows more perfect ia fome higher Hate..
extent
i^A The Rights o/'Necessity.
Book 11. Many morallfts allow fpeaking agalnft our fcnti- mcnts in fome extraordinary cafes. What if a bare falfe afTertion will not attain the end, fuppofe the pre- fervation of our country, may we employ perjury alfo? Men of any fenfe of piety abhor perjury upon any pre- tence of the highefl: necefTity. The ftatefman allows it lawful to bribe the fecretary of an hoflile prince to violate his oath of fidelity by betraying his mailer's fecrets; what if we cannot otherways fave our coun- try than by bribing him to poifon or aflaflinate his mafter? Even the ftatefman cannot defend this prac- tice. A manifeft tyrant or ufurper may be cut off by any private man: here killing is no murder. But may he accomphfli this defign by oaths of fidelity, by all profefTions of friendlhip, by the dark arts of poifon a- midft the unfufpicious pleafantries and friendllfip of an hofpitable table ? This muft fhock the greateft lovers of liberty. We may deceive a dangerous ene- my by falfe narration, fay many ; may we not, when the fafety of our country abfolutely requires it, de- ceive alfo by a treaty, or truce? The laws or cuftoms of all civilized nations deny it.
It may be impofilble to determine precifely how far we may extend this plea in all the poflible cafes. Men no doubt may often miftake, and upon fmaller necef- fities may violate laws too facred to admit exceptions in fuch cafes. But this does not prove that the pica is never juft. Men often make like miftakes about the rights of violent defence and profecution, and that of puniihing criminals : but we do not thence deny
7"/^^ Rights (^/"Necessity. i^r
thefe rights altogether. There is no fixing minutely Chap. 17. the degrees of force requifite in defence, or the de- ^-^^"v"X^ grees of pain to be inflicled on criminals. 'Tis ftill an ufeful rule for health to live temperately and ufe ex- ercife; and yet no m.an can determine to an ounce, the quantity of food he ihould take, or to a perch, the length of the road he fhould walk or ride for his health. Nay fome deviations from this regularity are fometimes confiftent with health, or may even im- prove it.
If one departs from the ordinary law for triflino- caufes, abufing this plea of necefTity, his own heartAf* 7''^'^^^ '2a muft condemn him upon reflexion, and all men di{-7ol/dt7 -f truft his integrity. This plainly fhews that the evils '""'• to be declined, or the advantages in view, muft be very great, in proportion to the importance of the law, which can found any exception to it. But v/hen one departs from the ordinary law only in great and manifefl exiQ;ences, and is known to adhere relieiouf- ly to the law in all ordinary cafes, even contrary to fome confiderable interefts of his own, men vvill have as full confidence and trufl: in his intcQ-ritv in all the ordinary affairs of life, as in thofe who have flriclcr tenets in theory. A man of the ftricteft tenets in opi- nion, unlefs he is alfo known to adhere religioufly to them in practice, may incur this fufpicion that he will countera6l them upon any great temptation : and if he who allows the plea of neceflliiy in cafes of fingu- lar importance, fhews a fl:ri6l regard to the ordinary law by his practice in all ordinary cafes, even when at-
j^g The Rights o/' Necessity.
Book IT. tended with many private inconveniences to himfelf, \^/V^\jhe will obcain the confidence of mankind notwith- ftanding this tenet. We know that men of fincere virtue will be cautious of abufing this plea for any little private advantages ; and w^e can truft their can- dour in this matter. And men of little virtue will counteract the ftri6teft tenets upon any profpects of advantaee. So that we do not confide in men accord- inp- to the fl;ri6lnefs of their opinions^ but according to our experience of their honefly.
The allowing fome pleas of necefTity does not fhake loofe all morality, as fome have alledged. All agree that that conduct is right which tends to the greateft good. 'Tis alfo agreed what conduCl: tends to the ge- neral good in all ordinary cafes ; and thus the feveral laws of nature are undifputed. In fome rarer cafes, 'tis alfo generally allowed there are fome juft exceptions, in which recedine from the common laws will do more eood than adherino; to them. There are fome more facred laws, from which, we doubt if any necefTity can juflify our departing. This uncertainty does not make the other points uncertain. Geometry is not. made uncertain, becaufe the learned know not how to fquare a chxle geometrically. The rules of medicine are not all uncertain, becaufe fome fingular difeafes occur for which there is no cure. Nor is navigation a vain art, becaufe we cannot find out the longitude with that accuracy we defire. cennairemaru IX. Takc thc foUowlug rcmarks to prevent abufes ■to^^rcvcnt «'«-^£ ^^ p|^^^ ^ ^ ^j^^ xixoi^ viituous any man iS; and th^
JJAP. 17.
The Rights ^^/^Necessity. 137
higher his fenfe is of all moral excellence, the lefs apt Cj he will be to abufe this plea in matters of too fmall importance, or for any intereft of his own. In fuch men there are not only the more extenfive afFedions to mankind, or to large focieties, but all the tender fo- cial feelings and affections of the heart of a narrower kind, and thefe alfo are objects of their inward appro- bation. They have a juft relifh of all virtuous affection andadion; of compaffion, mercy, gratitude, veracity, friendihip, and cannot counteracl them without great reludance. From thefe feelings they will be fufficient- ly cautioned and reftrained from uling any contrary pleas, unlefs fome intereft of the greatefl: and mod ex- tenfive kind roufe the more extenfive affections to controll the narrower, by their fuperior beauty and dignity.
2. In computing the advantages and difadvantages of receding from any ordinary rule, we muft confider not only the immediate effe6ts, but even the moft re- mote, of allowing this liberty in all like cafes ; and even the dangers from the miftakes of others in ufing the like plea in unlike cafes. Not that every practice, or tenet in morals, is wrono; or dangerous which men may readily imitate, or mifapply, in improper and un- like cafes. This may be the fate of the very beft ac- tions, and tenets. But a good man, as he weighs all the advantages expedted from an unufuai ftep, mull: alfo weigh all the difadvantages probably to enfuc even by the miftakes of others, efpecially of fuch as have fome fenfe of virtue: and he will decline to take
Vol. II. S
1^8 77;.^ Rights <?/"Necessity.
Book II. not only fuch liberties as would be pernicious to the publickif allmentook them in like cafes, but alfo fuch as would have the like bad efFecls by the mifapplica- tion of others in unlike cafes, unlefs the advantages expelled from them overballance even thefe evils en- fuing upon the mifapplication of them by others. Mer¥- often abufe the do6lrines of violent defence and pro- fecution. A good man would decline praclifing ac- cording to them, were not the advantages enfuing from the ufe of thefe rights, and the evils prevented by it, fo great as to overballance the evils arifing from the abufes of thefe dodrines in common life. When the plea of necefTity is only allowed in cafes of very great importance, there is little danger that men of virtue will frequently mifapply them. And the grofs mifapplications by vicious men are not to be compu- ted ; as the fame efFe6ls had happened tho' this tenet had never been known. Such men would have acted the fame part under temptation, tho' they had held the ftrideft opinions, and had no fuch unfair pretext of necefhtyo.
^. The more important any law is for the internal or external happinefs of mankind, the greater muft that utility or necefTity be which in any fmgular cafes can juftify an exception from it,
4. A. publick advantage in view, or the prevention of fome publick evil, is a more favourable plea than any private advantage of the agent. It fhews a noble difpofition to adhere to the ordinary rules under pri- vate lofles^ or. in oppofition to private iaterefls; CYcm
The Rights 0/ Necessity. i jf^
when receding from the rule could fcarcely have been Chap, i 7. reputed criminal. But where a publick intereft is at ftake, and founds a jufl: exception, a good man is not at liberty to facrifice it to any falfe notions of his own honour or charadler. He muft be deficient in his ex- tenfive affections, or miftaken in his moral notions, if he follows in fuch cafes fome lower fpecies of good- nefs in oppufition to the publick intereft.
5. Tho' in cafes of necefTity men may intermit ex- ternal worihip at the ufual times, yet no necefTity can juftify fuch a6lions as evidence impiety, or contempt of the Deity; fuch as blafphemy, perjury, or abjuring the true God, or that worihip we believe acceptable to him ; or f the omitting any duty he has fpecially enjoined upon us at all hazards; or the doing, or o- mitting, any thing required as a fymbol of our renoun- cing our duty to him.
6. As the foundation of all juft pleas of necefTity is fome great publick intereft requiring our departing from the common rule, no necelTity prelTmg me can juftify my voluntarily occafioning as great evils to an equally innocent man; as the publick reaps no advan- tage by fuch conduct. But the publick intereft is real- ly promotedjwhen an innocent manfaves himfelf from fome great evil by fome fmall damage done to ano- ther. In like manner; no fociety or ftate can be jufti- iied by thefe pleas in occafioning equal evils to another without any demerit. In thefe cafes indeed the pro-
t Thus the apoftles or primitive martjTS could not plead necefllty, had they omit t^ the publifliing the gofpel for fear of perfecution.
S 2
1^0 Tie Rights tf Necessity.
Boom II. babillcles on both fides mufi: be computed, both as to v.^/'VX-/ the impending evils, and the future compenfations to be obtained. To avoid a very certain evil on one fide, it may fometimes be lawful to do what may polfibly occafion an equal evil to another, when there is little probability that the other Ihall fulFer at all by it. But all fuch damages done to others for our prefervation from greater, oblige us to make full compenfation when we are able. The great probability or certainty of our making future compenfation juftiiies many fteps which otherways would have been unwarrantable. nerenr,of» ^^xt aftcr all we can fuggeft on this head, unlefs rroB mi,fi le /z^fomething more precife and accurate be difcovered, ""■'' ^'-'"^ ^ve muft have recourfe to the inward feelings of an honeft heart. A fenfe, which Ariftotle often tells us, mufI: make the application of general principles to particular cafes ; and thus the truly good man, and his fentiments, muft be the laft refort in fome of thefe intri- cate cafes. Men truly virtuous will feldom be in dan- ger of abufing thefe pleas. And no rules or rigid te- nets and opinions will bind the unjuft, the covetous, the ambitious, or felfilli, or bigots in falfe religions. If they allow the pleas of neceility in important cafes, they will mifapply them. If they do not allow them in opinion, they will countera6l in practice thofe very laws which they deem ftrictly univerfal without any exceptions.
CHAP. XVIII.
Ho%v CoNTRAVERsiEs fhould he decided in NATURAL Liberty.
BEFORE we pafs to the duties of the adventitious ftates, we may confider how contraverfies fliould be decided, and peace maintained, in natural Uberty, when men difagree about the point of right; and this will fhew the main ufe of civil polity, and the firfl ftep toward it.
'Tis well known that felf-lntereft often byafTes the t;.'- great uf^ judgment even ot good men, whole fixed purpoie it is toobferveallrulesof juftice and humanity, and to abftain from all known injuries; and violent paffions have often the fame efFed:. Thus men, in the main good, may be difpofed, from different opinions of right, to do what is injurious to each other; nor are they capable, when their paffions are once kindled, of receiving conviction from thofe againft whom they are provoked: they grow mutually fufpicious, and are unfit monitors to each other. When therefore no- friendly conferences of theirs can make them agree,- the next natural recourfe is to one or vaoi^ arbitra- tors ; perfons of whofe wifdom and integrity both fid^s are fatisfied, and who have no peculiar intcrefl in the fuccefs of either fide, nor are attached taeither by any very ftrong tyes. Such men-, tho' but of equal pru- dence with chat of the concending parties, Vriiimore
IA2 How Wars to l^e prevented
Book II. eafily difcern what is jufl and equitable between them;
K^/^^W\u and therefore all good men in natural liberty, nay in civil polity too, fhould be ever ready to take this eafy expeditious method of obtaining juilice in any debated point. And all good men, when they are difengaged from more urgent affairs, fliould be ready to do this good office, in promoting peace andjuftice as arbitra- tors, when they are invited, by the parties.
^ r r 11. Two forts of debates may arife: one about the
• T-wo pits of ^ ^ ^ ^ J
arbitrators. Jl/iB po'u2t of /ight , whcrc nclthcr party profelTes to fhew any liberality or gratuitous favour, nor claims it ; but each infilling on their perfe6l or external rights, and embarraffed by fome intricacies, want the affif- tance of wife impartial men. The other fort is, where the parties wave their external rights, and are willing to acl the humane and equitable part as far as their affairs can allow; and leave this to be determined by arbitrators. In cafes of this latter fort, arbitrators will find much lefs difficulty : but in both 'tis necefTury that they know the perfect rights and claims of both fides, and all exceptions againft them; that in the for- mer fort they may fix the perfecl or external right ; and that in the latter] they may difcern what equi- table indulo-ence or abatement is to be made to either party. In the debates of ll:ri(5l right they are much more confined in their determinations, and obliged to infift on ftri6ler proof; fince a defect of full proof may reafonably defeat a claim not founded in humanity and equity. But in the other fort of fubmiflions, the arbiu-ators have full room to confider every equitable
in natural Liberty. ia^
circumftance, and every reafon of humanity. A truly Chap. i8. good man who confides in the integrity of the arbi- '^-^^""^^'"'^ trators will ever agree to fubmilTions of this equita- ble fort.
The fubmiifion of the parties fhould always be 3b-„J/pJjTJ' folute as to the matters fubmitted. A man is not ob-^^'''- liged to fubmit all his rights, even fuch againft which there is no fliew of a claim. But over fuch as he fub- mits he fhould give full pov/er to the arbitrators. A compromife of this kind, that " the parties fliall ftand " to the award provided it be jufl," anfwers little pur- pofe; as the parties referve. to themfelves to judge of thejuflice of the award, the matter remains as before, only that they know the opinion of unbyafTed men about it, which modeft men may fometimes regard. But to end a debate efFe6lually, the compromife fliould be abfolute as to all matter fubmitted. And yet af- ter the mofl abfolute fubmifTion, either party may juflly refufe to acquiefce in the award, if either a frau- dulent compadl with the other be difcovered, or any bribe received; or if the iniquity of the award be fo grofs as of itfelf to be an evidence of corruption in the arbitrators to any honeft obferver. Thefe circum- ftances may free one from the obhgation of a com- promife, as a cafe of necefTity fupcrfedes the obliga- tion of the ordinary rules of life.
III. Arbitrators in their proceedings, when othei^,y-f^^^',7/S- proofs and documents fail, fuch as the acknowledg;-^'^ """^ """''
I -' ^ O tha:i t-jjQ iiA r:-
ments of the parties, deeds, or contracts figned byFi/-'-^* diem, muft have recourfe to witnefTes teilifying upon
1 44 How Wars to he prevented
Book II. oath. The chara6i:ers of witnefles, and their difinte- ^^^^"^'^^''^^ reftednefs in the prefent caufe, muft be obferved by arbitrators as they are by civil judges. What is now received by almoft all civilized nations about witnef- fes muft hold in natural liberty, that 'tis dangerous to truft any point of importance to the tefiimony of one witnefs; and yet the credibility of teftimony re- quires not great numbers. Two unexceptionable wit- nefles can give fufficient confirmation of any facl,when they ihew fuch fagacity, and had fuch opportunities of knowledge, that they could not be deceived them- felves ; and when from their circumftances we are well afllired that they have no difpofition to deceive others. The knowledge of fuch witnefles as were invited to the tranfedion by the parties, or who were prefent du- ring certain adions, may eafdy be afcertained. Their fidelity or having no inclination to deceive muft of- ten be collected from many circumftances, and chiefly this, that they can have no inter eft in deceiving, or no profpecl of fuccefs in fuch a defign.
Now two witnefl^es to the fame fa6l may give very high fecurity as to this laft point. One man of faga- city and prefence of mind may forge a ftory fo artfully and confiftently that no examination can detedl him, or make him contradi6l himfelf. But when two wit- neflfcs are fcparately examined, and hear not each o- thers teftimony, about every circumftance which would probably be obferved by one prefent at any tranfac- rion, 'tis highly probable that fome fuch circumftan- .ces will occur to the judge or arbitrator to queftion
in natural L i S E r tV. i 45
them about, which did not occur to the witllefles in Chap. 18. their forging any concerted falfhood. If the wicnef- fes anfwer feveral fuch queftions feparacely about thefe circumftances, there is a fair hazard that they will concradicl each other in ever}^ one of them, and fo de- ted their falfhood. If they both frequently declare that they are ignorant about many fuch circumflan- ces, or both profefs that they forgot the fame circum- flances, they give great caufe of fufpe6ling a forge- ry. But when upon the moft minute feparate exa- mination of them about all thefe circumftances their teftimonies wholly agree, or are perfedly confiftent, there arifes a very high evidence. The addition of one or two more witnefles could give little more cre- dibility to the facl. Nor do human courts ordinarily require more : it is certainly a right maxim not to judge upon fmaller evidence where greater is provided or attainable; and yet it might be a great burthen up- .on the parties to be obliged to produce many witnef- fes. They therefore require, except in feme fpecified cafes, only two as neceflary to found their judgment, nor require that more fhould be called by the parties as witneffes in their tranfactions. The tefllmony of one man of veracity may make any matter highly cre- dible to thofe who know his character, and yet to ad- mit this as full proof would be a dangerous rule, con- fidering how often men who have long obtained a fair character have at lafl: been difcovered to have no fteddy integrity. And if the Tingle teftimony of one is admitted in one cafe, it cannot be refufcd in others, Vol. II. T
lA^ How Wars to he prevented
Bo OK 11. without proof made of fomcthing very infamous in ^yyv\j the witnefs whofe teftimony is refufed. And frequent- ly fuch proof cannot be found againft men of very little worth or integrity. ^. , , , IV. When neither the conferences of the parties, i, ,Muvai Mcr QY the interpoial of common friends can end the de- bate, or perfuade both to a fubmiflion to arbitrators, there remains,in natural liberty, no other methodof re- dreiTing wrongs but by violence. As this is ahvays at- tended with dangers,and may have niofl: pernicious con- fcquences ; all other means of obtaining jujftice, where the nature of the cafe will admit, fhould firft be tryed. When thefe prove ineife6tual, one Ihould not only pro- cure the afTiIlance of his friends, or fuch whom indig- nation at the wrong done may roufe to hjs aid, but he iliould confult the calmeft and wifefl of his neigh- bours, not under any fpecial attachment to himfelf, as to the methods of defence, or profecution of his right, or the punifhment to be inflicled on the in- vader of it for the deterring of others from like at- tempts ; that thus all unneceflary feverity may be pre- vented, and no more demanded or inflicled than is juftly due to the injured, or requifite for the general fafety. T/f d.inzrr of Thc daugcrous confequences to be apprehend- '.hicHt defence ^j fj-^j^ ^j^^ immodcratc paiTions of men in the de- fi,c-usii:e,uccj:-fQ^QQ aud profccutiou of their riQ;hts by violence in ' natural liberty, where the unjuft will roufe all their forces, and in2:a2:e all their friends to their afliftance in fupport of their injuries, as well as thofe who have
in natural Liberty.
the jufl caufe, have probably been among the firfl: mo- Ch tives which excited men to contrive civil government, and arm magiftrates and judges with fufficient power to enforce all their fentences about the contraverfies of the fubjecls, and to inflidl proper punifliments upon the injurious, to deter them and all others from like attempts for the future *. Of this we treat in the next book.
'47
A p. I 8.
* As Tome rules of interpretation may be of ufe in determining the true intent and meaning of contrafts, as well as of laws, many authors on moral philofophy fubjoin fome difTertations on that fubjeft. But as there are no rules of interpretation peculiar to contradts, or laws, which do not hold equally about any other forts of ifpeech or writing, it feems better to leave
them entirely to the art of criticifm, which may have laws and contrafts as a part of its objed. Nor can much be fuggefted on thefe matters which would not of it felf oc- cur to any man of found underftanding wlio knew the language and cuftoms of the country where the laws or contradts are made, and the common principles of criti- cifm.
THE END OF THE SECOND BOOK.
T 2
BOOK III. OF CI VI L POLITY.
CHAP. I.
Concermng the adventitious States or per- manent Relations: and firjl Marriage.
I. ^T^HE rights and duties founded In nature pre- p«/<vw,: ai- J^ vious to any adventitious ftates or laftlng ''"'"'""" ''^''"" relations Inoroduced by foxne Inftltutlon, contra6l, or deed of men, were confidered in the former book. The moft part of thefe rights and duties muft ftill re- main in all adventitious ftates ; but they are fo limi- ted as the nature of the new relations may require for the publick good ; and many new obligations are con- ftituted by our entring into thefe relations. We pro- ceed to confider the principal of thefe adventitious ftates, and the fpeclal rights and duties arifing from them.
Thefe ftates and relations are either domeftkk or civil. The domeftick are thefe three, of nmrriedper- >r dUi. Jons, of parents and children, of maflers and jervants. The civil or political relations are either the general one of all citizens or fubje^ls toward the ftate, and its governors ; or the more fpecial relations of men in cer^^- tain political offices..
Thi r.cccfr.ts f-t a marrli^e coi.
tn:Ff.
T/jcKiGVLTS ^;?^ Duties In
II. The firft relation in order of nature is marriage. The fever al tribes of animals muft foon have been ex- I'tincSt if nature had not providently implanted in them all the inf1:in(5l and power of propagation. The nature of the fcveral inftindls in brutes is various, according to their feveral circumftances. As in moft fpecies their young need but little care of their parents for their pre- fcrvation, and thatof but fliort continuance, and but little inflruftion for the fimple purpofcs of their lives, both which the dams can fufficiently afford them, little more was requifite than the mere inftincls to propa- gate and to provide proper food, and nefts or dens for their young where it was requifite, till they attained fufficient ftrength to fupport themfelves. In fome few fpecies we difcern fomething more, a fort of partner- fliip of the two parent-animals, with fome appearan- ces of a lading affedion and fidelity. But the prefer- vation of human offspring, and the giving it the edu- cation neceffary for the higher purpofes of a rational life, require a long, a conftant, and troublefome at- tendance of many years, for which the mother with- out the aid of the father is not at all fuflicient: (we fpeak of the general condition of mankind, to which the natural inlHncls muft be accommodated, and not of theftate of a few artificially raifed to higher wealth:) and on the proper education of offspring the happi- nefs of mankind exceedingly depends. No part of nature difplays the goodnefs and wifdom of its au- thor more fully, than the contrivance of the feveral ii^indls and paflions in mankind fubfervient to this
/Z-^ State s/"Marriagf. 15-r
grand purpofe. A careful attention to the frame of Cha?. i. our nature in this refpect, \\ill clearly fhew our dudes ^-^^'''V' in this relation of marriaQ:e.
\\ e have ail attained to the knowledge of what is Fr« ^^t^i intended by nature in this itdHnct of propagation, be-"" ' ' fore thofe years in which it arifes : and a natural mo- deiiy or ihame generally reftrains us from gratifrino^ it for fome time further. We muft alfo hare obferved that a long feries of carehd and troublefome attendance is abfolutely neceiTary for preferring and educating the oitspring; and that for this purpofe nature has im.- planted that tenderelf and moft lafting parental affec- tion in both parents, as their joint aifiltance is highly neceflar)'. As this affection Iweetens this labour 10 both, fo it ihews the ftron:^ obliGcation unon both to
O O J.
bear it. And thus all fuch as regard the voice of na- ture, and the obligation it impofes. or have any fenfe of humanit}' and virtue, muft fee that, if thev gratify this inclination to procreate offspring, thev muit.both by fenfe of duty and by a Itrong affecdon toward the fame obiects.be united inintention.and in a longcourfe of labour and common care with the partner thev chufe for procreation. This ioint counfel, care, and labour, can Icarce be tolerable without a mutual affection and efteem between the parents : and to create this, we find that nature has wifelv formed us in fuch a man- ner, that in all thofe who are under the reftraints of the natural modefty, andof any fenfe of virtue, the in- clination to procreate is excited, or at leaft generally regulated in its choice of a partner, by many delicate
ir2 The Rights ^3';^^ Duties in
Book lil/entiments, and finer pafTions of the heart of the fweet- efl: kind. The fenfe of beauty prepoflfefTes in favour of a moral charader, or acquaintance gives better af- furance of it. The efteem of virtue and wifdom, the defire and love of innocence of manners, complacence, confidence, and the tendereft good-will, are the natu- ral incitements and concomitants of the amorous de- fire ; and almoft obfcure the brutal impulfe toward the fcnfual gratification, which might be had with per- fons of any chara6ler. As we thus previouily know the natural dcfign of this impulfe, and the obligations to- ward offspring thence to enfue, as we are endued with reafon, we are obliged to reftrain this impulfe till we have obtained affurance of fuch harmony of minds as will make the long joint charge of education tole- rable to both parents, and till we are in circumflances capable of fupporting fiich offspring as may arife. For the intimacy contraded in this joint lafting charge, and the recurring impulfes to procreation, may natu- rally produce a numerous offspring: and we may ea- fdy forcfee that the rearing and educating fuch off- fpririg muft fully require the conftant joint attention of both parents; nay, that, where there has not been Come wretched corruption of heart, dcftroying the pa- rental affection, all their joint cares come far Ihort of their affectionate and ardent wiflies for their children: thcfe inftincts and flrong natural affections, along with the lafting infirmity and dependent ftate of human offspring, plainly declare the intention of nature, that ^hey ihould be propagated by parents firft united in
/Z*^ State <?/~ Marriage. 153
mutual love and efteem, in an affeffionate and lading Chap. i. partnerfliip, to affilt each other in this moft important ^^-^''^V'V-^ duty toward our kind, of producing, rearing, and edu- catino; the rifing 2:eneration.
This moral machinery of rhefe inftinds we find has T'^' ^f"* ""*
J all cur autus tn
appeared in all ages and nations, and generally pre-'^"^"''- vailed; tho', no doubt, vicious cuftoms and habits can often weaken or almoft extinguifli many natural dif- pofitions in fome individuals. It will plainly fhew us almoft all our obligations as to marriage and offspring, all the reafonable terms which ftiould be ftipulated ia the marriage-contra6t, and the happy effe6ls upon fo- ciety, from following the intention of nature, and the mifchiefs naturally enfuing from counteradling it, will further confirm our obligations.
III. And firft, indulging the brutal impulfe with- m unUmUci out entring into any focial or friendly bond, without l^tlsf/r' ^^'' any regard to thefe tender and generous pafTions which naturally accompany this dcfire, befide its counterac- ting this beautiful contrivance of nature, muft have many pernicious efte6i:s upon our bodies, our minds, and human foclety. To follow the brutal impulfe, in oppofition to the natural reftraints of modefty, as early and as frequently as it appeared, would be pernicious to the bodies of the parents, as wxll as thofe of their pofterity; efpecially among fuch as are in more eafy circumftances, and freed from conftant bodily labour. The weaknefs of mind, and the diflclute habit, would ftill be worfe effects. Nature indulg-ent in this matter to mankind, has made them capable of n:ci"e frequent
Vol. II. U
I r A The Rights and Duties in
Book III. gratifications than moft other animals, as a compen- K^r\r\S{2iXAQn for the fuperior toils of educating their ofF- fpring. But by a fenfe of Ihame, and the many moral pafTions naturally attending this inftincl:, as well as by our reafon which can difcern the diftant efFe6ls, and the obligations we are under, nature has pointed out the method of o;ratification which is confident with all the moral fcntiments of the heart, with all the con- comitant generous palTions, and with the intereft of fociety.
Again, unlimited indulgences in promifcuous for- rM^/'^/J/.^' nication would have this effect, that the fathers would generally be uncertain about their own offspring, and have no other incitement to any cares about them than the general tye of humanity, which we know is not fufficicnt. They muft want one of the moft natu- ral fatisfaclions in the knowledge and love of their oiF- ipring, and one of the chief incitements to labour and induftry. The mothers, upon whom the whole bur- then of education v/ould be caft, muft find it intole- rable. They would grow negligent, and give them- felves up to brutal indulgences as well as the fathers. The natural purpofe of this inftin6l would thus be in a great meafure defeated, partly by the barrennefs of women, and partly by their neglecl of their ofF- fpring. The mifchiefs of a diffolute ftate, where all followed the brutal inftin6i: without reftraint, are but very imperfectly reprcfented to us by the evil efFedls we fee enfulng upon a few irregular indulgences, in a nation where the generality are under the v/ifc re-
pcrnicijUi to j"-
the State o/'Marriage. i^/^
ftraints of laws, and of modefty confirmed by educa- Chap. i. tion. And yet 'tis eafy from them to difcern what ge-^^^^v^x^ neral mifery mult enfue, If ail reilraints were removed, and if all gratified the brutal impulfe without any controul.
Many infl:in6ls of the moft ufeful fort may be mon- ^^^^<"/?'-^"» ^-z?* ftroufly perverted, and this one among others ; either by being turned toward a different fpecies, or the fame fex. Thefe indignities to the wife and venerable con- ftitution of our nature, and to God its author, muft evidence a brutal flupidity, and an infenfibility of what becomes rational beings conftituted in fuch a fyftem by a wife Providence. The horrid evils to be apprehended from fuch perverfions, if they frequently prevailed, are obvious ; tho' the effeds of a few rare inflances, in a nation generally educated with an ab- horrence of fuch lufls, be not confiderable. Were the reftraints of laws removed, and multitudes depraved by bad example, fatisfying the worfe than brutal in- clination, without involving themfelves in the toil- fome education of offspring, monflrous and unnatu- ral pafTions would arife, (as we fee both by fome hifto- rians and poets hath happened) wliich nations unac- quainted with fuch vices canfcarce v/ell imagine. Were thefe palTions frequent, a country would foon ceafe to be populous; and be infefted with wretches as abjecl and depraved in the other faculties andreliflies of the foul, as they are in this appetite. Such monftrous lufls are therefore to be feverely retrained in every fociety.
U .2
The cbli^.-iiijit to marrlize.
156 The Rights ^;;^ Duties in
Book III. IV. As from the preceding obfervations ic appears chat mankind ought to be propagated by parents uni- ted in a friendly partnerfhip for their education; we proceed to confider the reafonable terms of this part- ncrihip or contract ; fince 'tis plain there is a general duty incumbent on all with refpect to our kind, which alfo is flrongly recommended by our natural defires, that each one ihould contribute his part toward the continuance and good education of our race, unlefs he is ingaged in fuch important fervices to the publick as are inconfiftent with domeftick cares, or in fuch cu'cum- ftances that he cannot fupport a family. And with- out fuch juft excufes it muft be unnatural felfiilinefs to decline our part of this neceffary trouble. T-^.- arthk, cf I . The firft and moil neceffary article is that the '/.'f^I'va^jV/Zv fathers fliould have their offspring afcertained, and v.'ives. therefore the woman who profeffes to bear children to any man muft give the ftrongeft affurances that fhe will not at the fame time cohabit with other men. The violation of this engagement is the greateft wrong imaginable, as it robs men of what is deareft to them^ and the end of all their worldly cares, a certain off- fpring. In the marriage-contrail therefore this is the iirft article. Xi-cejpijofm,. 'Tis neceffary that women from their childhood jcjijfin ,ti /'■■^-j]^Q^jj i^g ^^ educated as fhall beft prevent fuch diftref-
fmg injuries. 'Tis well known that their fornication before marriage, befide the diffolute habit it may oc- cafion, founds fuch an intimacy with thefe perfons they have gratified, and fubje6ls their characters fa
p. r,
the State <?/" Marriage. 157
much to them, and caufes fuch pronenefs to future Cha: indulgenceSjOr cakes away their power of refifting their folicitations, that one is not well fecured in havino- his own genuine pofterity by marrying women of fuch conduct. When fuch previous indulgences are dif- covered, their charader for chaftity is loft; nor will men confide in their fidelity after marriage. Thus they are made defpicable, excluded from hopes of ob- taining any conjugal efteem and affcvStion, and from all reputable condition in life. The guilt therefore of for- nication on the part of the man muft alfo be very great, as he for a mean fenfual gratification expofes his fel- low-creature to a ftate of infamy, ruins the natural modefty and ingenuity of her mind, and makes her unworthy of that conjugal love and confidence upon which the greatefl: fatisfadion of her life depends, nor can fhe obtain it but by falfhood and difilmulation, in which fhe cannot be afllired of fuccefs.
We are all fenfible how grievous this injury is, whe- ther done by violence or fraudulent folicitations, to a;,Jt'il"/i' fifter or child of our own; the Q-uilt is equal when o- thers fuffer by it. It muft therefore be incumbent on all who have the charge of educating the young of either fex, to habituate them as much as pollible to all mo- defty in fpeech and action^ and reftrain every contrary appearance. 'Tis a ftrange corruption of manners and fenciments in any nation which boafts of maintaining liberty and equality in rights to all their people, thaL fuch cruel injuries to any, even of the loweft condi-. tion fliould efcape without fcvere puniflimcnt. The
1^8 The Rights ^/^^ Duties /;/
BooKlII.lowefl: orders of men feel the joys of conjugal love v^/"V>^ and of a certain offspring; they have the fame natural defires and fenfes with the higheft. The crime there- fore of depriving any of them of thefe fatisfadlions, and of a decent condition in life, and that for grati- fying a mean appetite, muft be greater than many of thofe which fubjed to capital punilhmcnts. 'Tis ftrange that the party lefs criminal fliould generally fuffer fo much, and no punilhment abide the chief criminal, the feducer, and that by the bafeft arts of fallhood and perjury!
Where more diffolute manners prevail, this in- famy may be Icfs felt by the women. Some abjecl creatures, whofe luft has obliterated all modefly, and fuppreffed all the finer fentiments and pafTions natu- rally accompanying the amorous impulfe, may chufe a diffolute courfe of life for its mean pleafures and gains. But, where-ever there is any regard to moral virtue, fuch courfes fhould be fever ely reftrained : as thofe who follow them always prey upon the weaknefs of youth, corrupt their manners every way, and create the mod ung-overnable habits inconliftent with all va- luable bufmefs in life ; and pervert the wife contrivance of nature in our inftincls from their natural purpofes. x.ukcUciwj V. The fecond effential article in the marriage- .fhuAanh. contra^:, is that the husband ihould confine himfelf to one wife. 'Tis true the injury by the husbands infidelity is not fo great as that by the wife's ; he can- not deceive her by impofing on her a fpurious brood. But in all other refpeds the moral turpitude is the
AP. I.
the State of Marriage. 150,
fame, and there are the fame juft reafons why a wife Ch, fhould demand this enaao:ement from the husband.^ The natmal paffions of the woman as much require a friendly fociety, and unity of intereft in the joint- education of the common offspring as thofe of the man.
'Tis the plainefl injuftice and inequality in this TbdupUym partnerlliip, which all the liner fentiments of the heart /-Vrtflic. ' declare fhould be an equal friendfhip, that a man and his offspring fliould be the fole objects of the woman's affe6lions and tenderefl cares, and all her worldly fo- licitudes, while his aifeffions and cares are allowed to be divided among other women and their children , and probably wholly alienated from her. Without fe- curity for the fidelity of the husband, all her fatisfac- tions in a friendly fociety, and the prefervation and fupport of her and her offspring, mufl be very preca- rious. And thus by the iufts of the husband, leading them either to diflblute enjoyments, or to fimulta- neous polygamy, for a mean fenfual indulgence, one half of the Ipecies, which is equally intitled to all fe- cial enjoyments and fatisfaclions with the other, is moft injurioufly deprived of many of the chief enjoy- ments of life. All the tender and generous paffions attending: the amorous inftin6f: In men, declare aQ-ainft fuch liberty; and point out to them that nature has defigned the conjugal flate to be a conflant reciprocal friendfliip of tv/o; as thefe paiKous are founded on efteem and love of virtue, and where they are heartily raifed toward one, cannot admit of any like paflions .
i6o The Rights ^W Duties in
Book III. toward Others at the fame time. The afFe6lions of the Kj^y^Kj husband muft be turned away from the former wife and her offspring either by adultery or fimultaneous polygamy ; the later wife and her children will proba- bly engrofs them altogether, and the former be un- juflly defpifed. Tht nnf.ucfs The cffects upon the rifing generation and upon 0 pys-^'xy- f^^^-^i-y ^^.-ji |3^ pernicious even from polygamy, as well
as from thediffolute indulgences of husbands. The number of one man's children may be fo great, that neither his care can fuffice for their education, nor his llock or induftry for their fupport. Many muft be neglected, and all the care employed on a fev/ favou- rites. As providence declares againfl this polygamy by preferving pretty nearly an equality in the numbers of the fexes, nay rather a furplus of the males ; by allow- ing polygamy, many men mufl be excluded from all enjoyments of marriage and offspring; and thus dif- engaged from the natural bonds with mankind, and their natural cares, turn abandoned to all unfociable difpofitions. Polygamy obftrucls rather than promotes the increafe of mankind. A nation is made populous when all the women are kept bearing and nurfing of children while they are capable of it. This is done mofl effeclually when every woman has her own husband. When one man has many wives, he will readily negled: the greater part of them, and decline being burthened by their having children. Women in this cafe too are under the ftrongefl temptations to violate the unequal and moil opprelllve engagement on their part j and to
the State o/'Marriage. kJi
take all opportunities of adultery. And hence we fee Chap. t. in fa(5l that where this pradice * prevails, the women '^-^^^'"^' are every way treated as Haves : no friendly regards had to their fatisfa61:ions ; chains, and prifons, and guards muft confine them, and not the bonds of love or friendfliip.
VI. As the joint charo;e of educatino; the common t-;=. contr-z^ offspring requires that the marriage-contracl fhould //I/'' "' be for a long duration, fince women are fruitful for one third of life and more, and generally the educati- on of their younger children may require the joint attention of the parents for many years after the mo- ther ceafes to bear children: this bond muft be into- lerable without a mutual friendfliip. Now there can be no real friendfliip in a partnerfliip merely entered Into for propagation and the rearing of children, and that only for a certain term, and to expire with that term ; or in one made dependent on contingencies or conditions not in the power of the parties. Both par- ties are allured into this contra6i:, as into a fociety of love, by the tendereft fentiments of mutual efteem: the aim of all fincere friendfliip is perpetuity. And there can be none in contracts only for a term of years,
* *Tis true, that in fome civilized na- tions this polygamy has been allowed to the men ; but this takes not away its ini- quity. Some good men have praftifeJ it, and perhaps not attended fufficiently to tiie guilt of it, blinded by cuftom and their own pafTions. Rut in like manner good
without any demerit. Nay fome from a miflfik.^n piety or love of their country, finer principles by far than thofe which ex- cite to polygamy, have praiTifed human facrifices, and even facrificed their own children. Tso man fhould therefore con- ceive thefe pracUfes juft, even tho' people
men in civilized nations have pradliied the i enured to them, or tlo.^e who even fufTer flave-trade, or concurred in the cunoni of j by them, do not complain of them as in making one half of their people flaves 1 general unlawful.
Vol. II. X
j52 The Rights ^;;rf Duties in
Book III o^ f^ch ^^ "^''^y ^^ ni^de void by accidents without vyvx^'anv fault of the parties. The marriage-contrafl there- fore miift be for Hfe, otherwife all true friendfhip and love mud be banilhed, and that relation of marriage turned into a mere fcrvile bargain for procreation and joint labour. D;rrrm..n/i- Agaiu, how crucl is it on either fide to divorce a '!^ai-l2^: " perfon full of the fondeft affedion, on account of a bodily infirmity? How much more barbarous to di- vorce upon the death of children a fond partner who fufFers equally in that misfortune? There is feldom any lofs to the publick by the perpetuity of the bond in thefe cafes. If the husband could have children by another woman^ that other woman may bear them to another man, for as good purpofe to the publick. The view of increaling of mankind would plead more for allowing a divorce on account of any defeat in the hus- band. But there is fuch barbarity in carting off a dear friend without any demerit, that while there is no danger of a defe6l of offspring in a ft ate, the al- lowance of divorces for this reafon is not juftifiable. ~ Upon defecl of offspring, either by barrennefs or the death of children, fome fort of *' concubinage would appear more tolerable ; but under fuch reftric-
* The concubinage allowed in the Ro- man Law, even after t!ie Emperors were Chrillian, inuft not be imagined as an al- lowance to married men to keep other women. It was an allowance only to n en who had no wives, both before and after the empire became Chrillijn, to enter into a fcrt of marriage p, riliflly jiift according
to the law of nature, and Cliriflianity tooj but fuch, that the wife and clnldren want- ed the honours and civil piivilcges con- ferred by X\\t juflae nuptias. See Heineccii AntiiVi. tit. de mipt. The like marriages are now in ufe in fomc Chriltian coun- tries..
/y?'d' State o/^Marriage. ' 163
tions that the concubine's children ihould not fucceed Chap. i. to the wife's portion, or to above a ceri ain Ihare of the ^^^'"'""^ common ftock acquired; and that when the husband takes this liberty, the wife might inilit: on a divorce if fhe pleafed, and have a large iliare of the common ftock: and this ihe might more juitly ia.ift on if flie fufpected that the want of offspring was not occa- lioned by any indifpoiition of hers. But when one confiders the difficulty of determining this point, and the cruel ufe which might be made of the licence of divorcing forfuch caufes, or taking fuch concubines, the general prohibition of both feems wife, humane, and honourable to our fpecies; and no general laws can be made free from all inconvenience.
VII. The tender fentiments and affections which Muruge .. engage the parties into this relation of marriage, plain- '^"'* '"'^'"'' ly declare it to be a ftate of equal partnerfhip or friend- ihip, and not fuch a one wherein the one party ftipu- lates to hlmfelf a right of governing in alldomeftick affairs, and the other promifes fubjection. Grant that there were generally fuperior ftrength both of body and mind in the males, this does not give any perfecft: right of government in any fociety. It could at beft only oblige the other party to pay a greater refpe(5t or honour to the fuperior abilities. And this fu- periority of the males in the endowments of mind does not at all hold univerfally. If the males more generally excel in fortitude, or ftrength of genius ; there are other as amiable difpofitions in which they are as generally furpaffed by the females.
X 2
The Rights and Duties /;/
The truth is, nature fhews no foundation for any proper jurifdi6lion or right of commanding in this re- ,.^r^/'^;^Irlation; and, previous to fome pofitive laws and cuf- toms, there is no prcfumption that the parties would ftipulate about any. Where pofitive laws and cuftoms have long obtained, and fettled forms of contra6i:ing are received, no doubt there is an external right of fu- periority conftituted to the husbands. But this flia- dow of right is no better than thofe which any info- lent conqueror may extort from the vanquiihed ; or any unjufl: fliarper may obtain by fome imperfec- tion or iniquity of civil laws; or by the weaknefs, or ignorance, or inadvertence of one he is contra6ling with. To take advantage of fuch laws or forms, with- out regard to equity and humanity, mud be entirely inconfiilent with an honeft character. Where husband and wife difagree in points of management ; in fmaller matters, this deference may be due to the one who has the greateft abilities, and manages the mod impor- tant affairs, that the other fhould courteouily yield, tho' againft his or her private opinion. If ordinarily thefe fuperior abilities are in the husband , and his greater ftrength, and other circumilances of body, fit him to be employed in the more momentuous affairs,it may more generally be the duty of the v/ife to fabmit. Bat in matters of great importance to the happinefs of a family, if they cannot agree, nature fuggefls no other method of deciding fuch controverlies, but a fubmiffion to common friends as arbitrators. Domef- tick matters indeed feem to be divided into two pro-
/Z^^ State o/Marriage. 165
"vinces, one fitted for the management of each fex, in Chap. i. which the other fhould feldom interfere, except by ^-^"^^""^^ advifing.
The powers vefled in husbands by the civil laws ofM^^ycivUhros many nations are monftrous, fuch as that of hfeand ^"'^"''^"^^' death. To exercife any fuch power, or even that of any corporal punifliment, muft be tyrannical and un- manly. Committing to the husband the whole power over the whole ftock of the family, including the wife's portion, is unjuft and imprudent, as well as contrary to nature. A wife woman, or any good truflee, retain- ing a power over a large fiiare of it, would have re- fcued from beggary the iffae of many an unhappy marriage. Affairs of importance fliould rather be com- mitted to both jointly, fo that neither feparately could tranfacl validly about them ; and a civil judge, or a prudent umpire be appointed to determine important matters of debate between them: or each fliould re- tain the power of managing their own (hares. In other partnerfliips no fuch abfolute powers are veiled in any one of the partners, nor arc they claimed upon any alledged fuperiority of genius or fortune ; nor is there any occafion for them : nor do we fee in them frequent inftances of capricious injurious treatment given by one partner to another upon any fuch alledged fupe- riority, as fome fancy, imperious, unmanly wretches afford, as the only recompence to their wives for too much credulity, and an incautious imprudent affecti- on to them: nor does the inferior partner in other fo- cietles run into fuch diunq;enuous and., ungrateful con-
crt contrary is V:7lurc are inv ItJ.
i6(5 TT'f Rights ^;/^ Duties /«
Book Ill.ducfl toward the fuperior, as fome wives who have got L/'V^X^ the afcendant over their husbands pra6life ; as it were in refentment of the unequal condition in which the laws have placed them, and out of oftentation of their art and fpirit, by which they have broke through them. yirtick, vhLb Thc artlclcs above-mentioned are the mofl eflen- v-tlal. Any contracts of marriage upon other terms, fuch as contrails for a certain term of years, or thofe fufpended upon the event of children furviving ; or upon other conditions not in the power of the parties ; or polygamy, even in nations where no pofitive law has prohibited it, are truly contrary to nature and juf- tice. A good man w^ould not think himfelf free upon the expiration of the term or the death of all the chil- dren, tho' he had exprefsly ftipulated thefe conditi- ons, if upon reflection he obferved the iniquity or cru- elty in fuch conduct. And he would upon like reflec- tion think all fubfequent marriages while the former wife lived, to be void; unlefs fhe confented to his ob- ferving thefe contracts, upon fome reafonable fecurity to her and her ifllie. The fubfequent wives thus dif- appointcd would have a right to fuch compenfations as thefe cafes could admit by fome provifion for the children they had before feparation, tho' they were equally in the fault with the husband, in entring in- to fuch a contradt. T,„pedmn:tsof vin. \Vc procecd to further obfervations on thefe
marriage natu- ^ ^
rai and moral, circumflanccs whlch may either make any contrail of marriage null and void from the beginning, or free
the State o/^Marriage.. 167
either party from the bond of a contracft formerly Chap. i. valid. ^-/^Wy
In the firft clafs is a natural incapacity for marriage through an original bodily defe6l or other accidental caufes. To which one may add perpetual incurable madnefs or idiotifm: nay, fome other incurable grie- vous difeafes which are ordinarily tranfmitted to pof- terity. Some diforders are fo calamitous that it were the intereft of fociety to prevent intermarriages v/ith perfons attii6led with them, even though the other party knew them, and confented to run the hazard. When both parties are well advanced in years, and there is no profpe6l of offspring, there is nothing faul- ty in the defire of mutual cohabitation and domef- tick fociety, where no reafons of prudence or duty to- ward any children by former marriages prohibit it. But iince marriages in a great difparity of years are manifeftly contrary to nature, and ought to be alto- gether prevented or made void by civil law, 'tis an affront to that honourable natural relation, that the name of marriage ihouldbe given to any contract be- tween a covetous or a diffolute youth and an old doat- ing woman, who is courted only for her wealth : or between an old dotard and a lafcivious young girl, in- fluenced by the fame or worfe reafons. The folemn forms and benediffions ufed on fuch occafions are full of profanity, and impious mockery of every thing facrcd.
Another jufl: impediment m^aking void a contract, .mzW; -mc^. is the want or iumcient knowledge m minors. iiS/„...
j_58 T^^^^ Rights ^;/^ Duties in
Boo';TII.furprizing that while all civilized nations, becaufe of v./'VX-.' the imprudence of youth, have made minors incapa- ble of obliging themfelves in any matter of commerce, and annul! all fuch deeds of theirs, or contrails en- tered into without the confent of parents or guardi- ans, yet in an affair of incomparably greater confe- quencc, the difpofld of their perfons, and choice of a partner in all important affairs for life, a joint- proprietor of their fortunes, and parent of their chil- dren, every boy pafl fourteen years of age, and girl paft twelve, can bind themfelves irrevocably without any fuch confent; nay, contrary to the exprefs com- mands of parents. This doctrine fprung from that fruitful fource of all corruption and fuperflition, the church of Rome; and for fecuring it fhe has taken care to blind men's eyes fo as not to ufe the refources and exceptions juftly allowed in other foolifli or ini- quitous contracts, by cloathing this one with a cloud of the myftical nonfenfe of a facrament. „ Common fenfe would teach that * all the marrlap;es of fuch as had not attained to wifdom nt for other commerce fliould be annulled, where the confent of parents or guardians was not interpofed, even tho' con- fummation had enfued. This law, in appearance fe- vere, is yet the moil merciful, preventing the crime rather than punifhing it. A woman of chaftity not willing to proftitute herfelf would then liften to no folicitations of minors, nor fludy to enveigle them. If
* This was the Jcwifii law, and the Roman law too, as may be feen InJiU. tit. d: nuptili, el I'^inniiis Comment.
ere v'juI.
rdl tfipt- Iments. I. A
the State o/'Marriage. 169
a young man enticed a rafh incautious girl with oaths Chap. i. or vows that he would confirm the marriage when he came to maturity, it might be left to the election of the girl's parents or guardians, either to compel him to fulfil them, or to annul the contra6i:, and ob- tain capital puniiliment upon the feducer. Such pu- niihment none can call too fevere upon fuch injuries done to families, when we think them juft for much fmaller ones, which deprive us only of a trifling part of our goods.
IX. The moral impediments or incapacities are thefe. I . A prior contract makes void any fubfequentii;. one of the like nature with a different perfon. The law"'"'' ''"*'''' of nature requires that marriages fhould be publick- ly known, that no married perfons may deny them, or impofe upon others, as if they w^ere not married. There is fome ground here of diftinguiiliing between an imperfecl contraB, obliging to a future marriage, and a compleat marriage ; as in commerce -j^ wx dif- tinguifh between a contra6i: founding only a perfonal rights and the full tranflation of property or of a real right, A prior contract about a future marriage fliould make void a fubfequent one of the fame kind with a third perfon; even where the third perfon knew no- thing of the prior contracl. The perfons guilty of fuch frauds deferve fevere punifliment : but an imper- fect contract without confummation, fhould not make void a fubfequent confummated marriage with a third perfon who was not apprized of the prior contradl.
i See book ii. c 8. § i.
Vol. II. Y
lyQ The Rights ^;^^ Duties hi
Book TIL For in this cafe one of the two innocent perfons who concracled with the fraudulent party, mud be difap- pointed, the defeating of the imperfecl contract, upon which no cohabitation enfued, is a much lefs misfor- tune than annulhng the perfe6i: marriage. If the third party knew of the prior contrail, this is a juft reafon why the marriage fliould be annulled ; the punilhment is too lio-ht for the fraud. The evils occafioned by fuch frauds are much more grievous, and mor.e deeply rcfented than'thofe injuries which fubje6l to capital puniiliment, and the feverefl: laws againft them would be merciful, as they would prevent the crimes. X. The nearer degrees of confanguinity and affi-
o/^rr,.."Smcy, Chriftians, and many Heathen nations too, have always looked upon as moral impediments of marri- age. The natural reafons commonly alledged fcarce feem to have force proportioned to the great infamy and the notions of impiety attending fuch marriages. The moft abhorred kind is that between the afcend- ing and defcending degrees. Not only the inequality of years, but the natural reverence in thefe relations are very oppofite to the equality produced by marri- age. But greater inequalities of years fome times do not make marriages eicher immoral, or even impru- dent. And it is not every fort of reverence, due to higher merit or authority, or gratitude due for the Ijreatell: benefits, which would De inconfiftent with this relation, tho' that of parents fcems inconfiftent. 'Tis fcarce accountable without fome natural inftincl of averfion to fuch mixtures; how they have been fo
"Sear iepvce or a^.iir/.
[AP. r.
ihe State (^/"Marriage, lyi
univerfally abhorred. A monftrous praftice received Cil by one fe6l in Perfia, is no objection to this fuppofitl- on, which is confirmed by the fentiments of all the world belides.
'Tis aroued that brothers and fillers by living; to-n . /• /..^ gether from their infancy would fall too early into fuch pafTions, and be lefs capable of refifting foUicita- tion, through their great intimacy, were there not a fevere prohibition, making fuch commerce matter of abhorrence. But it often happens that coufin-germans, and remoter relations, are educated together in the fame intimacy, and we fee no difmal effecls from the permifTion of intermarriages among them. And were thefe marriages with fifters lawful, one would think the early pafTions would do no more harm than they mull frequently do on other occafions, where young people contract early acquaintance. If there be any natural averfion in this cafe too, as well as between parents and children, checking the general impulfe, it feems not fo flrong: and we find that fuch marriages of bro- thers with fillers have been more received in Heathen nations. There is more of equality in this relation ; whereas the long habitual authority exercifed by pa- rents, and the reverence and fubjection to which chil- dren are enured, may polfibly v;ithout other princi- ples rellrain all thefe amorous inclinations fo naturally requiring an equality.
Whatever natural caufes there may be for the very ^^.^^^ ^^^^/.,.,^j general averlions to marriages among the nearer re-/'^'''^'"'^-"''* lations by confanguinity and even afFinity, 'tis certain
Y 2
I -7 2 The Rights ctnd Duties in
Book TIT. thcrc have been fuch averfions in many nations little \y^V^\j civilized, and where we can fcarce imagine that either very artful confiderations of general intereft, or very delicate fentiments of decency have occafioned them. And the abhorrence of fuch marriages was everywhere much higher than any reafons of expediency or pru- dence could have occafioned. Hence fome ingenious men conclude that there has been fome * early divine prohibition, the memory or tradition of which has been preferved among moft nations, in fome more di- ftinclly, and in others lefs, as there was greater or lefs attention to the purity of manners.
There is one manifefl: and important reafon of pru- ' ^"'"^" "', dence why a wife legiflator fhould prohibit fuch mar- riages, that were they not retrained and abhorred, the early opportunities would make them exceeding- ly frequent, and by this means the facred bonds of affection would be too much confined, each family would be a little fyftem by itfelf, detached from o- theis; at leafl as to all the flronger bonds of affeclion. Whereas now, in confequence of the prohibition, and the general abhorrence enfuing upon it, or upon any other caufcs which may probably concur in this mat- ter, multitudes of families are beautifully interwoven with each other in affection and interefl, and friend- ly tyes are much further diffufed. There may be other reafons in nature not known to us, or not yet fully obfcrved. A mixture of different families may be ne-
* This fccms one of ihc bcH: evidences for tl.e Jcwii^i traditJoi; of ihc Praccefta Nsaclidariim,
oj fruitiice j^t tir" rrchlbitivt.
the State of Marriage. 17-5
cefTary to prevent a degeneracy of the human race ; Chap. i. as fome pretend that luch intermixtures, or crofTmg ^->^"V^^-^ the ftrain by cattle of a different breed, is neceffary to prevent their degenerating ; if we can decently make fuch comparifons.
We fee plainly the above-mentioned advantage in ,J^;,,'t.""" the refl:ri6i:ion, and fcarce any thing grievous can en- fue from it. Nature has provided other forts of af- feffions among kindred, which are great fources of joy, and fufficient incitements to the duties of thofc relations. Thefe confiderations juftify any legiflator in prohibiting fuch marriages : and after the prohibi- tion, and the confequent infamy which will attend them, nothing but a diffolute luft, with an infenfibi- lity to all honour, and great inhumanity toward the other party whom one muft involve in this infamy with ■ himfelf, can move one to break through fuch prudent laws. But that there is not a neceffary inva- riable turpitude or moral impurity in all thefe marri- ages ordinarily called inceftuous, antecedently to the prohibition of them, muft be owned by fuch as confi- der that God laid the immediate children of Adam under a necelTity of inter-marrying, and for fome po- litical reafons ordered fuch marriages, on certain con^ cingencies as were ordinarily prohibited.
Chriftian ftates 'j- have ia this matter folio v/ed the rh^praUkeof Jewilli laws, prohibiting all marriages in the afcend- "' *""'"'
f How far the New Teftdment confirms and adopts the Jewifh 'aws maybefciii in the Divines and Canonifts. Grotins, PufFcndorf, and iJarbcyraque have omiteJ little of confequcnce in thisqueftion.
ijA The Rights ^;?<f Duties in
Book Ill.ing and defcending lines; and all in the tranfverfe line '^yWJ between fuch as fland in a relation like to that of pa- rents and children, fuch as between uncle and niece, aunt and nephew, or grand-uncle and grand-niece ; or any of their defcendents ; and all marriages among collaterals within the fourth degree. And prohibit- ing perfons to marry any one in fuch relation of af- finity by a former marriage, as they could not mar- ry in the like relation of confanguinity to themfelves. Marriages in the fourth and all further degrees are al- lowed. Dtgrcci u-:, '^\iQ decrrees of confanQ-uinity amono; collaterals
compi:tcd til tie o O J O^
avii r.rj car.r.,y^Qxt thus computcd, as we fee by the civil law. All kinfmen come from one flock: now, '^ as many ge- " nerations as have been from the ftock in both lines, ^^ fo many are the degrees." Brothers and lifters are in the fecond; uncle and niece, in the third; coufin- germans in the fourth, and their children are to each other in the fixth. Among the other frauds of Popery, their canonifts, to draw more money to their courts for difpenfations, encreafed the prohibition exceed- ingly. They preferved the words of the old rule, but changed their meaning by a new method of comput- ing the degrees, according to the perfons or genera- tions from the common ftock upon one fide only, tak- ing indeed the longer line of the two. Thus brother and fifter are in the firft degree: uncle and niece in die fecond, and coufin-germans too in the fecond ; and the children of coufin-germans are only in the third ; and fo cannot marry without difpenfation; the chil-
the State (p/'Marriage. lyy
dren of fecond coufins are in the fourth degree, and Chap. i. thefe are the neareft who may marry without it. ^<-/"V"VJ
XL Thefe are the impediments which make mar- r/.. j..y?..vr,, riaees from the firft null and void, accordino* to the f, ''"'"■"' '^' Chriftian and civil law. We next confider the cau- fes of divorce, which frees one or both parties from a bond once valid. Thefe are, as in all other contracts, the violation of any of the cfTential terms, either by the crime of one party, or by any fuch event as makes the party utterly incapable of the duties of that re- lation, when the other did not confent to be bound upon fuch events. 'Tis manifefl: that adultery in the wife is a jufl; caufe of divorce; fo is alfo that of the husband, fince he engages to fidelity to the wife, as he naturally ought to do, for reafons above-mention- ed. Nor ought the contrail to be fufpended upon the condition of offspring furviving.
The adultery of women makes offspring uncertain, and thus does the greateft pofTible injury, befide its perfidy ; that of men is manifefl: perfidy, and naturally alienates the affe61:ions of the husband from his wife and lawful children. It generally diverts him from all domefliick cares and honefl: induftry for his family, and contributes to the ruin and infamy of other women. By this pradlice an uncertain offspring may arife to infamy and mifery, without proper education; or if the offspring be fufficiently known to the adulterous father, his proper care of provifion for it mufl: be in- jurious to his lawful children; and may provoke theii injured mother to a worfe revenge, as flie fees fuch
5yt5 7?^^ Rights ^W Duties hi
Book III. perfidy in her husband. Indulgences of this kind with V-/^VXJ proflicutes where there is no profpecl of offspring, muft on other accounts be criminal, as they alienate the affe6lions from the wife, and contribute to that infamous courfe of life, in which the proftitutes make it their bufmefs to divert from marriage, and all fo- ber induftry, and cares of a family, and inveigle youth into fuch vicious habits as are inconfiftent with any honourable purfuits. As to that adultery which cor- rupts the wife of another, no crime can be more hor- rid, for reafons already mentioned. How much more grievous are fuch injuries, which cheat men's tender- eft affe6tions by a fpurious brood, alienate the affec- tions of the partner they have chofen for life, and im- pofe on them a falfe offspring to inherit all their la- bours, than any injuries in our goods by ftealth or robbery? Sure no punifliment can be too fevere for them, f and death was juftly infli6led by the Jewifli laws. i.ohftinatcie. Auothcr caufc of divorce is the obftinate and un- 'futkd enmities, reafonablc defer tion, or refufal of cohabitation, by one party; upon which indeed the other may juftly com- pel to cohabitation by force: but if all hope of fatis-
f See Lcvit. xx. lO. Deut. xxii. 22. The penalties in the old Roman and Gre- cian laws for adultery, and debauching free citizens unmarried, even without violence, were very high. We find death might be inflided in the faft. And we fee that caf- tration was an ordinary ponifliment. The eld form of profecuting is not very clear. The Lex Julia dc Adidtcr'ils allowed the a^io pnhlicuox protcution by any who in-
clined in the name of the (late, and the pe- nalty to the man was relegatiofi, or a fort of banifliment, and confifcation of the cri- minal's eftate. Conftantinc made adultery capital. Cod. 1. 9. tit. 9. 1. 30. The fol- lowing Emperors abated this feverity. Nov. 134. 10. Juflinian confined theadul- tercfs for life in a monaftery ; and conti- nued the capital punilhment on tlie adul- terer.
the State o/^Marriage. 177
faftion that way fails, the Innocent party is free from Chap, i, the bond. A friendly fociety for life is an eflential L/^'^V.' article ftipulated on both fides, and the violation of it by one party muft fet the other free. And for the very fame reafons, an implacable hatred or enmity, ' fufiiciently declared on one fide, without jufi: provo- cation given by the other, fets the innocent party free. Thus, attempts upon life by poifon or afTafllnation, or falfe accufation in capital anions, or barbarous af- faults often repeated, were deemed in the civil law cau- fes fufficient for a divorce: as was alfo perpetual mad- nefs, as thus the effential articles are violated, or made impoffible to be performed, as well as by adultery.*
Marriage indeed differs from many other contrads ^''" '''""^'''
,,.•,1. f, f/ould he n-Mi'.i.
in this, that other mnocent perfons, the common off- fpring, are deeply concerned in the continuance of the contradl. It fhould not therefore be left to the plea- fure of the parties to break off the contra<5L as they pleafe. But when through the fault of either fide the effential ends of this relation are defeated, viz. the procreating and educating of offspring, and a friend- ly fociety for life; the innocent party may be free, if this is miore eligible than compelling the other to the duties of this relation ; and has a right, which the fo- ciety fhould maintain, of making the guilty party by labour or goods contribute in another manner the pro- per fhare of charge toward the maintenance and edu- cation of the common offspring.
* To deny obdinate defertlon to be a caufe of divorce or repudlum, becaufe the in- nocent party uofs not put away, but is left by the guilty, is only cavilling about words.
Vol. II. Z
The Rights and Duties in
Courts of juftlce fhould take cognifance of the vi- olations of this contra6l in civil fociety, and that in a ■JL 7%,\ti.x£iOit fevere manner than in other matters of contraft, and redrefs the innocent at the expence of the guilty. Nay, as in mofl ftates, an equitable power is lodged in fome court for redreHlng opprefTive contra6ls, and refcinding them either in part or in whole; it might be equally convenient to lodge in proper hands a power of diiTolving fuch marriages as *prove miferable to both parties, either by the fault of both, or by fome fingular difagreement of their tempers, when upon a confiderable trial 'tis found that there can be no hopes of any eafe or peace while they cohabit ; and both are willing to fubmit to any terms for a divorce ; taking alfo fufficicnt precaution for the common off- fpring, when there is any, out of the goods or labours of both. Such feparations indeed fhould not be light- ly allowed upon any fmaller contentions, or tranfient animofities : nay, fuch penalties and inconveniences ihould attend them, as would reflrain both parties from feeking them for fmaller caufes ; and reflrain both from any ill-natured conduct, with defign to tempt the other to concur in fuing for a feparacion. If a large iliare, fuppofe two-thirds, or an half of the goods of both, or a like proportion of the profits of their labours, were immediately to be adjudged into rhe hands of fome proper truftees for the benefit of their offspring, when they had any; or, if they had none, fome large fum, in proportion to their wealth, impofed as a tax to the flate, this might prevent tlic
.p. I
the State of Marriage. lyo
fuing for divorces on trifling caufes, or provoking each Cha; other defignedly by ill ufage to concur in fuch a fuit. And new marriages might be prohibited to both for a confiderable time, to try if they could return into a mutual affedion. If under thefe inconveniences, they chofe to be divorced, to avoid the fuperior miferies they fufFered from this relationf , it would be cruel to deny them this liberty. Where the fault lies chiefly on one fide, the penalties or hardihips upon a divorce fhould chiefly be inflidled on the guilty party.
f The pafTages of fcrlptureupon which divorces have been univerfally prohibited in all cafes except that of adultery, are Matth. V. 32. Mark X. 5 — 12. Lukexvi. 18 But fome prohibitions equally uni- verfal are allowed to be elliptical exprefTi- ons, or to admit more exceptions. Thus, Matth. V. 34, &c. and James v. xii. are allowed to be elliptick, and would have been thus apprehended by thofe to whom they were addrelTed, viz. " Your doctors '' teach that fome forms of fwearing are *' obligatory, and others not obligatory; *' that fuch and fuch are obligatory, and ** others not. (See Matth. xxiii. 16 — 22.) *' But I fay unto you, fwear not at all [with- '* out intending to be bound] neither by *' Heaven, &c." And then our Saviour fhews that all thefe forms, even thofe which their dodors denied to be obligato- ry, are metonymical forms of fwearing by God 9>QtGrotiusD.J.D.et P.l. 2.c. 13. In like manner, we may judge the prohibi- tions of divorce elliptical, without violat- ing the rule Excepiio covfinnat regulam iti 7ion exceptis . The Jcwifh do(51ors allowed many trifling cnufes of divorce, fome one or other of which muft have been fpecifled in the bills of divorce, as thefe bills were often credentials to the women, that it was not for the more infamous caufes that they
were divorced. Among the caufes allow- ed, no doubt, adultery would be one. The full fentence then may be this. " Who- " foever puts away his wife for any of the " reafons [allowed by your doflors] ex- " cept that one of adultery, and marries " another, commits adultery." This does not exclude other juft caufes, as appears by I Corinth, vii. 15. which declares the Chriftian party to be free from the marriage- bond upon the obftinate defertion of the infidel. The Jews would not make this a caufe : they treated their wives like flaves : it was only husbands who divorced. Upon defertion they would recover their wives as they would their cattle, and might be as little follicitous about their afFedlions as thofe of their flaves. From the figurative (lile of the fcripturcs one may perhaps alfo extend the meaning of adultery to other faults; to the alienation of heart by ob- durate hatred or ill-nature. Such difpofiti- cns defeat one great end exprefled by God in the firft inftitution, and exprefly ftipu- lated and promifed mutually by the parties, that of being mutual helpers in this part- nerlhip for life. Gcnef. ii. 18, and 24. ma- ny other crimes, and much infolent treat- ment are as dire<^ violations of the effen- tial articles of this contradt as adultery.
j8o The Rights ^W Duties /;;
Boorilir. XII. Were the corruptions of fuch as profefs the Ky^/^\u befl: inftitutions chargeable upon the Inftitutions them- Jr«//'/C' -felves, or their author, nothing could be moreoppro- '■•■'"^'^'^"■'''""•brious to Chriftianity than the laws received in many Chriftian dates, about fornication, adultery, and divor- ces. The Scriptures indeed recommend all purity of manners, and reprefent all contrary vices in their odi- ous colours, without any difguife: but in many Chrif- tian flates, fornication of the worfl: fort, the debauch- ing free citizens formerly innocent, by all frauds and perjuries, is no civil crime, unlefs force has alfo been ufcd ; as if the laws allowed all who pleafed to pra6life all manner of lewdnefs. The ecclefiaftick puniihment is a jeft to thofe who have made tolerable advances in impudence. Nor has adultery any proper civil penal- ties on either party. In fome countries a pecuniary fine is fometimes given as a compenfation of damages : no perfon is incapacitated by fuch crimes, for any honours or offices civil or military, or w^orfe received in his pre- tenfions to any itation. And yet God and the world fees how certain trifling ceremonies and modes are enjoined by eccleiiaftick laws, and adopted by the civil, the non- compliance with which, tho' from a principle of con-^ fcience, or fome opinion that they are ofFenfive to God, fliall exclude a man from all hopes of preferment, or any reputable offices in his country.
Again, tho' adultery is allowed a jufl caufe of di- vorce, fuch proofs of it are required, as it is impof- fible generally to obtain. Whereas, fmce the mutual fatisfaftion of the parties in this relation, if they arc
AP. I,
the State (^/'Marriage. i8i
faithful In it, muft be of more Importance than the cul- Ch. tivating any other frlendfhip; other Intimacies fhould certainly yield to it, as far as they are inconfiflent with it, which however they feldom are to people of vir- tuous intentions. If therefore either party fufpe6ls the other of too great intimacy with any third perfon , and Intimates this fufpicion before witnefles, all fu- ture voluntary conversation of the party thus admo- nllhed with the third perfon fufpeded, in any retired place without witnefTes, fhould be deemed a proof of adultery. The moil friendly converfation with one we honourably love may be obtained fufficiently in publick places, or in fuch w^here we are in the view of others.
Again, when the canon law allows a divorce for a- yiUirMtic: ,« dultery, which is the only caufe it fuftains, neither are''' """^''''*'- the guilty puniilied as they ought, nor juftlce done to the innocent. Both are alike reftrained from mar- riage, againft all common fenfe. If the guilty are al- lowed to live in the ftate, they are perhaps juftly hin- dered from marrying the partner of their guilt; left people fliould commit adulteries with this view. But they fhould not be left more expofed to that vice to which they already appeared too prone. Other punifh- ments fhould be inflicted : and it would be more proper to compell them to marriages with perfons formerly infamous, and of fufficient luft for them, to prevent their corrupting others. Reftralning the innocent par- ty from the fatisfaction of marriage and offspring is a manifeft iniquity, a new and monftrous injury.
i82 The Rights ^;?^ Duties in
Book III. The original of chefe laws is eafily found in hiftory. ^^/X^^Durino- the early perfecutions, fome melancholy no- /imllS/^-'^tions of fan6lity in all fufferings, and of impurity in many of our moft innocent enjoyments generally pre- vailed. Worldly bufmefs was thought inconfiftent with the heights of piety, tho' piety is never more fmcere and lively than when it engages men in all fo- ^ cial and kind offices to others, out of a fenfe of duty to God: and*juft philofophy, as well as religion, could teach that true devotion, tranquillity, refigna- tion, and recollection too, may be pra6lifed even in a court or camp, as well as in a wilderncfs. But celi- bacy was early admired as facred, and the chafteft marriage was reputed at befl a ftate incapable of the hio-hefl: purity. The ecclefiafticks affecling to be ex- amples of perfeffion, both generally pradlifed celiba- cy, and recommended it. When by the eftabhfhment of Chriftianity they got accefs to wealth and power, they grew as corrupt as the layety; and yet, not to renounce their old known maxims, and to retain their authority and veneration with the layety, they muft keep up this fhew of fanclity, and of difengagement from the world, tho' contrary to the exprefs do61rine of the apoftles. Celibacy was enjoined on the cler- gy in fome early councils, and thefe injun6lions often repeated in corrupt ages, while they were generally framing one canon after another to prevent their in- famy by keeping concubines and whores, and with lit- tle fuccefs. Under fuch reflraints from lawful en-
* See Marc. Antonin. in a variety of pafTages,
the State ^Marriage. 183
joyments, no doubt, much debauchery was fecretly Chap. i. pra6lifed by a corrupt generation, fupported in eafe ^-^^^"^^ and luxury: and by their artifices, in the eleventh and twelfth centuries, the ages of ignorance and fu- perftition, the cognifance of matrimonial caufes, and of all venerial crimes, was wrefted from the fecular judges, and affumed by the fpiritual. The punifh- ments they appointed were fome ufelefs and often trif- ling pennances, and donations to ecclefiaflicks. The former law^s were too fevere for their purpofes. Adul- tery was the moft convenient crime for fuch clergy, with lefs danger of difcovery, and free from the charge of maintenance to the fpurious offspring. The proof requifite for conviffion muft be made difficult, or al- moft impofTible; and all profecutions muft be difcou- raged. The injured profecutor muft be reftrained from marriage, after divorce obtained upon the fulleft proof. It muft have been monftrous, and even fhock- ing to a Popifh nation, to have relaxed all penalties upon adulterelTes and their gallants, without a like lenity to the adulteries of husbands. Thus the pu- nifhments were made light to all. And the clergy well knew their own fuperior advantages, by their reputa- tion for fanctity, and their accefs to great intimacies by confefTion, and other religious artifices.
XIII. The o-eneral duties of this relation may be T''^'"l'''^:'
O ^ J lies I,! tfj.s tela-
abundantly known from the ends of it. As this ftate""^"- fhould be a conftant fricndfhip for life, it muft require the greateft previous caution in chufmg partners, who by their virtue^ good-nature, prudence, and fuitable
i2a The Rights a^ci Duties in
Book III. tcmpcrs, Will makc this relation an inward friendfhip founded on fincere efteem. 'Tis incumbent on all who enter into it, to acquire an habit of good-nature and felf-command, as well as knowledge of the affairs of life. In chufing a proper perfon, the advice of friends iliould have the greateft weight. The affeftions of the young are often engaged without deliberation, and, when they are fo, they cannot judge calmly and
impartially.
'Tis of great ufe to be previoufly well apprized of the infirmities and imperfedtions of the very befl: of mankind, and not to let our imaginations fwell with airy hopes of every thing calm, and ferene, and pru- dent, in the whole deportment of each other. The tempers of the young often appear fuch to each other, while the ftrong mutual pafTion poffeffes them, and they are put to no trial by the troubles and difap- pointments of domeftick affairs : and then every little ruffle or oppofition is matter of furprize and offence. But if w^e are well apprized of the weakneffes and fud- den pafTions incident to the beft tempers, we Ihall bear them patiently from one of prevalent goodnefs, and have far lefs vexation or difguft from the common occurrences of life: and every good and lovely difpo- fition, every a6l of felf-government and condefccnfi- on, will be mutually the more efteemed, and the more endearino;.
i,,j:::cmrof j^jy^ ^[^^ rcfmements of* Plato on this fubjecfl
in filence. j' ' '^
* DeRcpub.l. 5.
cannot be paffed in filence. He obfcrves the many in
//^^ State o/'Marriage. 185
conveniences arifine from the narrow bonds of wed- Chap. i. lock and parental affection: that men confine their ^^^^'~^'' views and affections to a few objedfs, and grow negli- gent of more exteniive interefts, while they are warm in purfuit of thofe of cheir children and kinfmen; that vices are overlooked in them, and the feverity of dlf- cipline relaxed: innumerable contentions are raifcd by jealoufy , and the clafhing interefts of families. Wealth is often heaped up for the mofl worthlefs members of fociety, and men are promoted to honour and power from thefe narrow motives, and not in con- fequence of virtue and merit. He propofes therefore a fcheme for the * fupreme order in his ftate, by which, as all property is excluded, fo are all thefe narrower tyes of affe6fion. By his plan, no man was allowed a wife to himfelf, nor could father or mother know their own offspring, and fcarcely know each other. All children were immediately after birth removed to publick nurferies, and thus made children of the flate. Whoever reads this plan, will find many of the af- perfions caft upon it to be unjuft. Never was there in any plan lefs provifion made for fenfual gratification.
The grand fault of it feems to be, that it is not Thejuftohec. adapted to human'nature, and to the affections which ""'" "^""^ ''' God has implanted in it. We ihewed -f already, the fuperior evils to be dreaded from community of goods, and this community of offspring would occa- fiun much more. And firft: That necefTary care and labour in the rearing and education of children, now
* The *u>.ax:s:, or guards. f Pro conjugibus et Uteris, pro arh ct foi is.
Vol. II. A a
i86 T/jc Rights ^^/i Duties of
Book Ill-bom by the parents with pleafure, through their fond afFe(5lion, would be an unfupportable toil to others, and would feldom be faithfully executed. Again, life would be robbed of its fweeteft enjoyments in the ten- der conjugal and parental affeclions, which could ne- ver be compcnfated either by loving a nation at large, or by particular friendlhips. And for particular friend- fhips, which no fcheme can exclude, even tho' no tyes of blood were known, while our hearts continue as God made them, they muft produce many of thofe dreaded evils, unlefs mankind were generally much wifer in their choice of friends, than in the marriage choice, or in parental cares. Do not we all fee that thefe faffions which often tear ftates afunder are ve- ry little influenced by tyes of blood, and frequently make men counterad them ? they arife from ambition and the different opinions about the proper admini- ilration of affairs, and from admiration and zeal for favourite chara6lers upon whofe fidelity and w^ifdom the feveral parties depend. Why then exclude the higliefl fatisfactions of life, thofe of mutual love in fuch tender relations, which have always been found the chiefeft fprings of induftry, and an incitement to '^" zeal for our country's defence, aiid to all honour- able fervices?
Hi2:her knowledoc and virtue muft be introduced, and our natural affcffions fupprefTed, before induftry, activity, labour, and dangers can become agreeable from a calm extcniive affection alone, without any of
* B. U. Ch. vi.§ ;.
Parents <^;?^Children. ' 187
thefe tender bonds; and without the hopes of exer- Chap. 2. ciiing, according to our own judgment, Hberality, ge- ^-/"V""^-^ nerofity, and munificence, and contributing to the happinefs of fuch as are pecuHarly dear to us. And yet a lower degree of wifdom and virtue in the legif- lators of any ftate might contrive * fuch laws about education, a cenforial power, eledions to offices and honours, and fucceffions to the fortunes of parents, as would generally prevent the worft of thofe evils Plato dreaded ; and that at a much lefs expence than that of banifhing all the tendereft joys of life in the natural relations of marriage and families. The end of civil polity, as f Ariftotle obferves, among his juft cenfures upon this fcheme, is not mere unity and fafe- ty, but the general happinefs of a people.
CHAP. II.
37;^ Rights ^W Duties ^Parents ^;?i Children.
TH E defire of pofterity is natural to mankind, ne^aiurahu- tho' in fome inftances it is reflrained and over-^^f,'/'''^ ^''^ powered by other defires. Such is the conftitution of nature, that human oiFspring long continues in a ve- ry infirm ftate, needing the continual afllftance and care of others, both on account of its weaknefs, and its want of all knowledge of the dangers it is furround- ed with. A great deal of information and inftru6tion,
* For this fee Xenoph. Cyropoedia. Moris Utopia. Telemachusy and Harringtons Oceana* f See Arijlot, Po/it. I. 2.
A a 2
i88 The Rights and Duties of
BookTII and many reftraints upon their appetites, are necef- ^^/W^ fary for preferving children to maturity, and fitting them for acting their part tolerably in human focie- ty. For all this indigence nature has provided a fup- ply by implanting the tendered: afFc6lion in the breafts of the parents, exciting to and fweetening this long laborious attention. And as we are a rational fpecies capable of fore-thought, and gathering prudence by time and obfervation, this affection is made as lafting as our lives ; fince children during the life of their pa- rents may need their advice and counfel, and be ex- ceedingly profited by them in many other refpe6ls. x\nd the parents during life may reap new pleafures, by means of this ftrong and conftant affedlion, from the profperity of their children. Thus nature has conftituted an amiable fociety, a permanent relation, by thefe lafting afFeffions in the parents, and by the ilrongeft motives of gratitude prefented to the minds of the children to confirm the natural affection on their parts. Tn< fiau of The intention of God in this matter, is manifeft 'p'JZluiemhy this whole contrivance. The parental affedion «,7 /.««j the fuggefts the permanent obligation, on parents to pre- fcrve their children and confult their happinefs to the utmoft of their power. The weakly and ignorant ftate in which children long continue, fuggefts the parents right to an unlimited power of dirc6ling their adions for their fifety and right education, and yet makes this power eafy and fafe to the children, by reftraining all unneccffary fevcrity. The parental af-
Parents ^//^Children. i8^
feftion itfelf, when the children come to mature Chap. 2.. ftrength and knowledge, muft procure the fatisfacti- ^.-/>^"XJ on of liberty to them, when they are thus capable of enjoying ic, and exerting their own wifdom in the bu- fmefs of life ; and yet will continue to them all the advantages of the counfel and other kind offices of parents. The children, on the other hand, as foonas they can know any thing of moral obligation, mufi: fee their duty of fubjection and obedience in their early years, their duty of gratitude, and of making all returns they can to fuch tender benefaclors ; particu- larly, of complying with their inclinations, as far as they can confidently with their own natural fatisfac- tions in life, nay, facrificing, in their turn, to their parents, much of their own inclinations or pleafures not abfolutely neceffaiy to their happinefs. They muft difcern the facred duty of fupporting their aged pa- rents, in their fecond infirmity or childhood, and bear- ing with their weakly humours and peevilhnefs ; as pa- rents from a fond diiinterefted affection long bore with fuch manners of theirs in their childhood ; without which they never could have attained to maturity; nor could any human laws or vigilance of civil governors have enfured their prefervation, or compelled their pa- rents to that faithful and laborious attendance to it.
II. The manifeftly diiinterefted nature of this affec- ne deration tion fhews at once the nature and duration of the pa- rental power. The foundation of the right is the weak- nefs and ignorance of childhood, which makes it ab- folutely neceffary that they fhould be governed a lon^
of parental power.
rjQ^ T/;^ Rights ^//^ Duties o/'
Book TIT time by others: and the natural afFedlion pomts out the parents as the proper governors, where no prudent civil inftitution has provided more effe6lually for their education. The generous nature of this affe6tion fhews that the power committed by nature is primarily in- tended for the good of the children, and, in confe- •quence of their happinefs, for the fatisfaclion alfo, and joy of the affectionate parent. The right therefore cannot extend * fo far as to deftroy the children, or keep them in a miferable ftate of ilavery. When they attain to mature years, and the ufe of reafon, they muft obtain that liberty which is neceflary to any ra- tional enjoyment of life. The parental affection na- turally fecures to them this emancipation, as the rea- fon God has eiven them intitles them to it. TM cmrnr. ti This foundation of the parental power plainly fhews
hth parents, ^j^^^ '^ cqually belongs to both parents; and that the mother is wronged when fhe is deprived of her equal fhare, unlefs where {he has voluntarily confented, in dependance on the fuperior wifdom of her husband, to fubmit all domeftick matters to his laft determi- nation. But whenever the father does not interpofe, or is abfent, or dead, the whole right is in the mother. This whole power, as it is intended for the preferva-
*■ The doflrine of Hobbs on this fubjeifl mufl move tlie indignation of any one who has the common feelings of humani- ty, tho' fome parts of his reafonings are ufed by others inadvertently in eftabiifliing fome favourite fchemes. Hobbs makes diildren a piece of goods or chattels, flrd occupied by the mother, and abfolutely in
her right, becaufe flie could have provoked abortion, or ftrangled them in the birth. But in marriage, (he and all her rights are fubjedl to the husband as the ftronger, or in virtue of her confent. And thus the abfolute patria potejias is conflituted for life, fo that the father may kill, fell, or en- flave his poftcrity for their whole lives.
Parents and Children. r^ i^
tion and good education of children, can only extend Chap. 2. to moderate chaftifements, fuch as are not dangerous O^Wj to life: and its higheft puniflhment mufl be abdicati- on or expulfion from the family. 'Tis manifeft too, that its nature, intention, and duration are quite dif- ferent from that of civil power, to which large num- bers of adult perfons muft be fubje6led continually, for a common interefl of the whole fociety ; which too muft extend to all punifliments and violence that may be requifite for the common defence and fecurity ; as it is not founded on any particular afteclions im- planted by nature toward a few, but upon the gene- ral aife6lion; and contrived by men for the common intereft of a large fociety.
To found this parental power on mere procreati- ^rnmtfcurj. on, is a foolilh extendino- of fome maxims received'".";;/''"'^'"* about property to the moft foreign fubjecl imagina- ble. The bodies of children were formed in their firft ftate out of fome parts of the parents bodies; but not by any wifdom or art of the parent; nay fometimes contrary to their defire and intention. God who gave parents thefe difpofitions fubfervient to procreation, formed both the bodies of the children and the pa- rents, and fo deftined this order of procreation, as to fhew the rights and duties of both parents and chil- dren ; and the foul, the principal part, is his own im- mediate workmanfliip. So that children cannot be deemed accefTions or fruits going along with the pro- perty of their parents bodies. They commence rati- onal beings, parts of this great fyftem, with the lame
102 The Rights ^;^^ Duties of
Book Ill.nacural rights which their parents enjoy, as foon as V-XV^^ they have reafon to ufe them. Generation no more makes them a piece of property to their parents, than fucking makes them the property of their nurfes, oat of whofe bodies more of the matter of a child's body is fometimes derived, than was from both parents. On this footing the proprietor of any cattle by whofe milk and wool they are fed and cloathed for any num- ber of years would ftill have a flronger claim. The parent who expofes his child, or negleds his educa- tion, has no right of power; and whoever voluntarily undertakes the neceflary office of rearing and educa- ting, obtains the parental power without generation. Generation points out the perfons on whom this duty is incumbent, by the natural affection accompanying it; and thefe fhould not be excluded from difcharging it, and enjoying the power requifite for it, except for a fuperior benefit to the child by fome finer contri- vance for education. But when the parents are dead, or wickedly decline this charge, whoever undertakes it, has the whole parental power. The rights CO.,- This graud end of the parental power fhews that it includes few of thofe rights contained in the patria potefias of the Romans. The child is a rational agent, with rights valid againft the parents ; tho' they are the natural tutors or curators, and have a right to dire6l the actions, and manage the gogds of the child, for its benefit, during its want of proper knowledge. If goods are conveyed to a child, by donation, legacy, or inheritance, the parents are not the proprietors ;
ta'ucd In it.
Parents ^«JChildren. io-»
nor have they a right to more of the annual profits Chap. 2. than compenfates all charges and labours ufefully em- O'^'^X^ ployed in the child's maintenance and education. The fame may be faid of any acqu-ifitions which a child of fmgular ingenuity and dexterity might make be- fore it came to the full ufe of reafon, which fome- times might far furpafs all the prudent charges of its education.
III. So far concerning the proper parental power, rJl'Ji[\f which naturally expires when children come to the""'-^' full ufe of their reafon. There are two other forts of power generally fucceeding to it, but of a very diffe- rent nature, and upon different foundations ; the one, that of the bead of a family ; the other, that autho- rity or influence, rather than power, which a parent fhould enjoy during life over children when they are adult, and live not in the parents family. As to the former, while one fupports in his family adult chil- dren, or any friends, 'tis ever expelled that they fhould conform themfelves to the order of the family, or that rule which the mafter of it ordinarily claims : and while they voluntarily chufe to ftay in it, they are jufHy prefumed to have confented to this fubjefiion. If they did not confent, they fliould not have taken this fupport or thefe conveniences. This power is folely founded on the confent of fuch as are fubje6l to it, declared by their voluntary continuance in the family. This power cannot be of great extent: little fe verity is requifite for the order of a virtuous fami- ly: the lafl punifhment fcems to be exclufion from
Vol. II. B b
ig^ The Rights ^/^^ Duties of
BooKlII.it:. If crimes are committed which defervefeverer pu- nilliment, the mafter of the family, or others, have the fame right of punifhing as they would have had tho' the criminal had never lived in this family. No right to infli6l the feverer puniihments arifes from this ftate or relation. If the cuftom prevail'd in any age that maftcrs of families aflumed higher power over their domefticks; and if adult perfons who knew this, voluntarily remained in thefe families, thus confent- ing to the power afTumed ; they might, no doubt, thus conflitute as high a power over themfelves as that or- dinarily affumed by civil magiftrates, and thus make a family a little monarchy.
IV. The other power, or weight and influence ra- ther, is that which parents fhould always retain over children, even when they are fupporting themfelves in feparate families. This is ftill more remote from any civil authority or proper right of coercion, or of annulling or invalidating any deeds of the children. It is no more than a claim founded on ftrong bonds of 2:ratitude, and all the 2;enerous fentiments of chil- dren, and the deference due to the facred order of nature; which mud incline them to gratify, as far as they can, and comply with the inclinations of fuch kind benefactors, who v/ith fuch patience and lading tendernefs fupported them in their infancy, and ftill purfue them with the fmcereft affeclions. It muft be highly ungrateful in children, not to confult their fa- tisfaClion in their old age, or to add to the ufual dif- trcffes of that ftace of life; or to decline facrificing
is fir^cl.ul.
Parents ^WChildren. ip5
their fmaller or lefs neceflary intercfls or pleafures to Chap. 2. thofe of fuch kind benefadors and faithful friends. '^^^"^^"^'^^ In particular, children are facredly bound to con- ^5''^"'^ {' fult the inclinations of parents in fuch matters as are^«^'' of high importance to the parents as well as to them- felves; fuch is their marriage, from which thofe are to iffiae who muft reprefent their parents, as well as themf elves, and are often as dear to the remote as to the immediate parents. Marriage indeed is of more importance to the happinefs of the parties than to that of their parents; and confequently parents can have no right of compelling the parties contrary to their inclinations, to the deftroying of all the fatls- faclion of their lives. And yet, on the other hand, a child's marrying with one unalterably difagreeable to his parents, muft prevent almoft all agreeable focie- ty with the parents. An high deference therefore to the parents in this matter muft be due from the child even in mature years and judgment. It would be a cruel return for all the care and conflant affeclion of the parents, by a precipitant marriage to cut off all their fatlsfadlion in thofe who fhould be deareft to them. If the child judges the parents averfion to be unreafonable, all proper reprefentations fhould firft be made, and arbitrators called in, that wife friends may conquer the prejudice. Without firft trying fuch me- thods, it is cruel and ungrateful in a child, to take this important ftep againft the parents confent. If thefe means are tried, and the averfion judged un- reafonable by arbitrators, and the child's afFedions
Bb 2
io6 T/je Rights and Duties of
Book Ill.fo engaged that a difappointment muft make life mi-
K^j^^"^^^ ferable, the child may ufe ics liberty for its own hap-
pinefs ; and muft by all future dutiful condu6l fludy
to conquer the parents prejudice.
Duty toward ^g ^^iQ facrcd bonds of parental affedion are fel-
trt -J'tji or jra- iT
''''-"^- dom removed or broken altogether by the undutiful
condu6t of children; fo a good man would make the bonds of nature on the other fide fo ftrong in his heart, that no provocation fliould break them. This deference or reverence a good man would pay to the order of nature, that he would retain a ftronger good- will to the very word parent, one who had ruined the ftock of the family, or even expofed himfelf in his in- fancy, than toward a ftranger of like character. A child come to maturity, as far as the laws of fociety will allow, may juftly flop a parent in thofe ruinous courfes. And yet it is flill amiable to lliew a dutiful afFe6lionate difpofition in fiich a relation, as far as the fafety of our family or our country will admit : to be obliging even toward the evil and the fro ward, out of refpecl to the venerable order of nature, where there's no merit in the immediate objecSl. If there be nothing defirable in the converfation of parents, nor hopes of making any amendment of their tempers, yet it is flill lovely in a child to give them fupport^ and confult their eafe, as far as he can v/ithout incou- raging them in their vices, or pernicious follies. ihiuf.^!-,- V. As the parental power naturally extends to all
tfuiu the means requilite ror the rearmg and education of
childixn, it muft contain fever al rights OYer them of au
Parents r2f;/<^ Children. 107
unufual kind, in eafes of great exigence. Whatever a Chap. 2-. parent in tolerable circumftances expends in the edu-' cation of his own children, when nothing is declared to the contrary, is indeed juftly deemed a donation, without a right to demand any refticucion, except he falls into great diftrefs ; and only under this conditi- on, that he fhall receive fupport from them, if he needs it in old age. Nay, from the common intention of parents in their acquifitions, the children are a fort of joint proprietors, tho' the parent has the admini- ftration of the whole. Where children indeed have fortunes left them by others, there is no iniquity in a parent's charging the prudent expences made on fuch children, as a debt on their fortunes; when his owa reafonable eafe, or the condition of his other children requires fuch condu6i:. A parent muft have a right alfo to commit the care of the education of his chil- dren to perfons of better abilities than himfelf, or of more leifure for it: or of giving them in adoption to others who can make better provifion for them. Thefe are ordinary parental rights. But in cafes of great ftraits a parent has a further right of transferring to another his claim of compenfation for the pafi: char- ges he has been at, and of binding the child into any humane ftate of fervitude for fuch a term of years, that his labours may compenfate thefe charges, and thofe of his annual fupport during his fervice ; but ever with a right of redemption by himfelf or any friend who would defray thefe charges. This contract is fomctimes nccelTary for the parents fupport; and
jo8 The Rights ^W Duties of
BooKlIl.fomedmcs a prudent office for the child, by which he V-^^Vv^is bound, as any minor is, by a prudent deed of his tutor; and his obHgation is one of thefe called quafi ex contraBu, of which formerly. But as no parent can transfer a greater right over his child than he has him- felf, this can be no foundation for perpetual or here- ditary flavery. Such a contract is fo far from an ufe- ful office, or a negotiiim utile gejimn, that it is mani- feftly iniquitous, and produces no obligation. Gvupo^verh Thc powcr of a ftate over its members is upon a rL'^>l«J/£ quite different foundation, when numbers are once af- fociated for a common intereft, where each one is fe- cured at a publick expence in the poffeirion of all his rio-hts, and enjoys forhimfelf andpofterity prote6tIon of laws and magiftrates, is defended by armies, and obtains the innumerable advantages of a civilized life: for thefe extenfivc interelis of multitudes, it may be juft to compel them to undergo the greateft dangers, nay to run upon certain death. Muiors enjoy the fame advantages with the aged, and thus are in juftice fub- jecled to the ftate, previouily to their own exprefs or tacit confent ; as they have Ihared from their birth of thefe advantages, and in confideration of them are bound to contribute any reafonable fervices they are capable of, toward the preferving and continuing fuch beneficent afiTociations : of this, more hereafter. It is however fcarce juft or prudent to enlarge the parental powers by civil laws. The powers conftituted by na- ture are fufficient for the purpofes of education. The parent is but an improper deputy magiftrate, for the
Masters ^WServants. ipp
execution of juftlce over his children, for many ob- Chap. 3. vious reafons : and granting him a power to kill, ex- "^-^VX^ pofe, or fell his child into perpetual flavery, without any demerit of the child's, is a monftrous iniquity.
CHAP. III.
The Duties and Rights (j/'Masters and Servants.
LAS foon as mankind were confiderably increafed J^^ ^^^;#« «/
•^^ in numbers, and the more fertile clear lands occupied, many accidents would occafion that a great many would have no property, nor any opportunity of employing their labours on goods of their own for their fupport : and many on the other hand who had much property would need the labours of others, be willing to fupport them on this account, and give them fur- ther compenfation : this would introduce the relation of mafter and fervant. Whether in the earlieft a2:es men entred into fuch contracts for life, or only for a certain term of years, is not of much confequence. The rights and duties in this relation, will better ap- pear from the following confiderations.
I . The labours of any perfon of tolerable ftreng-th t^'^^M^'-^^-
,p . p •' ,^ , I 1-1 -^""^ "f natural
and lagacity are 01 much more value than nis bare>7?'Ve maintenance. We fee that the generality of healthy people can afford a good ihare of the profits of their labours for the fupport of a young family, and even for pleafure and gayety. If a fervant obliged himfelf
about tins relation.
200 The Rights iS';?^ Duties of
Book III. by concracl to perpecual labours for no other com- pcnfation than his bare maintenance, the contract is plainly unequal and unjuft; and being of the onerous kind, where equality is profefTed on both fides, he has a perfe6l right to a further compenfation, either in fome pcculiwn, or little ftock for him and his family, or in a humane maintenance for his family.
2. Such a fervant, whether for life or a term of years, is to retain all the rights of mankind, valid a- gainfl: his mafter, as well as all others, excepting only that to his labours, which he has transferred to his maf- cer : and in lieu of this he has a right to the mainte- nance as above mentioned, or to the wages agreed on. If by cuftom mafters affume any reafonable jurifdidi- on over their domefticks, not inconfiftent with their iafety and happinefs, the fervant, by voluntarily en- tring into the family, is deemed to have fubjecled himfelf to this jurifdiclion; even as a foreigner who refides in a ftate, fubje6ls himfelf to the law^s of it as far as they relate to foreigners.
3. Where one has not transferred a right to all his labours, but only engaged for work of a certain kind; he is obliged to that w^ork only; and in other refpecls is as free as his mafter. In none of thefe cafes can the mafter transfer his right, or oblige the fervant to ferve another, unlefs this was exprelly agreed on in the contract. 'Tis of high confequence to the fer- vant, what fort of mafter he ferves. One who con- fented to ferve a perfon of humanity, or who hadlefs fevere work to employ him in, muft not be deemed
Masters ^/;^ Servants. 201
confenting to ferve any other perfon of a different Chap. 3. temper, or who may require feverer labours.
i*fe cnn-
off.3 very
4. Men may juftiy be placed in a much woiie con- 7^''' '"''""'' '^"^
dition of fervicude, in confequence of damages inju- rioufly done, or of debts incurred, which they have by their grofs vices made themfclves incapable of dif- charging. The perfon whom they have tnus injured has a perfect right to compenfation by their labours during their lives, if they cannot fooner difcharge the claim. A criminal too, by way of punifhment, may juftiy be adjudged to perpetual labours of the feve- reft fort. In thefe cafes, a power is founded folely for the behoof of others, to make all the profit by their labours which they can yield. Whatever humanity may be due to fuch unhappy fervants, as they are ftill our fellow-creatures, yet the mafter's power and right being conftituted only for his behoof, it is naturally alienable without their confent. But, ftill, in this worft condition of fervitude, neither the criminal, after he has endured any publick punifhment which the com- mon fafety may require, nor much lefs the debtor, have loft any of the natural rights of mankind belide that one to their own labours. If they labour as far as they can, they have a right to obtain fupport. Nay, they have a right to defend themfelves by violence againft any favage ufelefs tortures, any attempts of maiming them or proftituting them to the lufts of their mafters, or forcing them in any woriliip againft their confciences. They can acquire rights by con- tract or by any legal deed of conveyance by others, Vol. II. Cc
nations
202 Th^ Rights ^;;^Duties of
Book III. which may be profitable to them in extinguilhing the ys.yVKJ debt, or compenfating part or whole of the value of their labours, where the labours are not enjoined as a part of the exemplary punifhment. In particular, they acquire rights by any deed of the mafters remit- ting to them any part of their labours. ^ /:;vm/.omm' As this fort of flavery has a juft foundation, fome '''"'""''"•^""nations favour liberty immoderately by never admit- ting the perpetual fervitude of any citizen. And yet perhaps no law could be more effectual to promote a general indullry, and reftrain floth and idlenefs in the lower conditions, than making perpetual flavery of this fort the ordinary punifhment of fuch idle vagrants as, after proper admonitions and tryals of temporary fervitude, cannot be engaged to fupport themfelves and their families by any ufeful labours. Slavery would alfo be a proper punifnment for fuch as by intempe- rance or other vices ruined themfelves and families, and made them a publick burden. There might be a trial firft made, according to the Jewifh cuftom of fervitude for feven years ; and then they might be al- lowed their liberty, in cafe they had acquired an habit of diligence; but if not, they Ihould be adjudged to flavery for life. It might alfo be a more ufeful pu- nifliment for many other crimes than thofe commonly appointed.
II. As to the notions of flavery which obtained a- mong the Grecians and Romans, and other nations of old, they are horridly unjufl:. No damage done or crime committed can change a rational creature
:il R'jmnn c-iC-
Masters ^;?^ Servants. 20?
into a piece of goods void of all right, and incapable Chap. 3. of acquiring any, or of receiving any injury from the^^-^'^^'^^ proprietor; unlefs one fhould maintain that doino- ufe- lefs mifchief, and creating excelFive mifery unnecef- farily, can tend to the general good; and occafion no diminution of the happinefs in the fyftem, which is contradictory in the very terms.
Captivity in war was almofi: the only occafion of captuus ,>. introducing this ilaveiy; and we fliall inquire how far^f'""^"''" any right of the conqueror can entitle him to make captives and their descendants perpetual (laves, or to detain them perpetually to labour at the pleafure of others. For as to other miferies of llavery, accordino- to the Grecian and Roman culloms and laws, nothing can juftify them.
Here, lirft, it is amazing, that wife and civiUzed t^^"'.^^"^- nations, abounding with fentiments of humanity dinAprlZt!"' virtue on other occaiions, and no ftrangers to the in- conftant fortune of war, fhould ever have introduced fuch cruel cuflom, which upon many accidents may bear as hard upon their own citizens as upon their enemies, upon thofe who fought for the juft caufe, as well as upon thofe on the injurious fide, and may as feverely affecl the publick-fpirited and the brave, as the felfiih and the cowardly: Nay, thefe latter ge- nerally keep themfelves out of fuch dangers. Mufi: not all the fentiments of compafTion and humanity, as well as reflection upon the general intereft of man- kind, diflfuade from fuch ufage of captives, even tho' it could be vindicated by fome plea of external right ?
C c 2
20A T/:e Rights arid Duties of
Book III. Again, By violent occupation no man can acquire '^/^'"''^^ any right unlefs he had a jufl: caufe. Without a juft j.v/.^uXr7Xcaufe, whatever he takes, he is bound in confcience J^X '"" "'' to reftore. An agreement of nations feems indeed to have introduced an external right in favour of neu- tral ftates and their fubjcfls, who by any plaufible title have obtained any of the fpoils or captives in war, from either of the hoftile parties, fo that the old pro- prietors cannot claim them from the neutral ftate, upon any pretence of the juftice of their caufe. But while the captures remain in poflfefTion of the captor or his countrymen, if their caufe was unjuft, the old proprietors mayjuftly retake them ; until by fome trea- ty or confent of theirs, or of their governors, by whofe deeds they are bound, they relinquiih their claim. Kctpfn^aiie III. But fuppofc captlvcs are taken by thofe who ■^'^have a juft caufe: nothing can be demanded of them in ordinary cafes, but either by w^ay of punifliment, and fecurity againft like offences for the future, or of compenfation of damage. Now perpetual flavery cannot be juftly inflicted on the generality of the fub- jecls of a ftate wiiich engaged in the moft injurious wars on either of thefe accounts.
Firft. One fifth of the fubjecls never can be guilty when a ftate makes an unjuit war. In a pure demo- cracy, where all heads of families vote equally, yet the women, the minors, and the fervants, have no fhare in publick counfels; and they are more than four fifths of any people. And how feldom are de- mocratick afTemblics unanimous? in moft other forms.
cvoi iH a
Masters ^;2^ Servants. 205
not one in an hundred contributes to the injuflice Chap. 3. by any counfel or deed of theirs, or could pre\Tnt it.^.^'VXj The fubjects pay taxes, which are exa6led bylaw, not knowing to what ufes they are applied. To refufe them, would occafion their being extorted by vio- lence, to their own lofs, and would not prevent the war. Grant they knew the war to be unjuft, their diffent, or their refufal of taxes would not prevent it; and if they falfely imagine it juft, their errors a- bout poHtical matters are often invincible ; they fol- low fuch fpecious reafons as their governors repre- fent: and the bare approving an unjuft action upon falfe information can be no fault in him who has no opportunity of better information. No political union can fubject a people to punifhment for that guilt of their rulers which they did not advife them to, nor occafioned by any adlion or omiiTion contrary to their duty.
Again. The main end of puniihment, viz. the de- xd fit for the terring unjuft men from like injuries for the future, is '^'' '^ ^""'^" not naturally obtained by puniihing innocent fubje6ts. This has very little eitecc upon wicked princes or governors. The eiFedtual and natural puniihments w^ould be fuch as v/ere inflicted on the unjuft gover- nors themfelves, who are the caufes of the injuries complained of. No puniihment is juft without fome antecedent guilt in tlie fufferer: other evils juftly in- flidted fometimcs on the innocent, come under ano- ther notion.
As to fecurity aQ-alnft like offences for the future; ^'' "^/'"^'•^
2o6 TT'^RiGHTS andT>uTiEs of
Book Ill.thofe alone are bound to give it in all ordinary cafes, L/Wy who have been criminal, or contributed to the injury by acting or omitting contrary to their duty. And all the fecurity obtained by enflaving the captives and their pofterity, can be generally obtained in a much more humane method. They and their goods taken may be detained with the captors, till a juft peace is obtained, they may be obliged by their moderate la- bours for fome time to increafe the wealth of the in- jured ftate, and if they can be convmced of the juf- tice of our caufe, they may be fcccled with us as fub- je6ls, enjoying all the natural rights of mankind; nay, be naturalized, by which the fame diminution is made of the enemy, and as great acceffion made to that of our nation, as by their flavery. c,i,tivcs fci- 2 . As to the fecond plea, the compenfation of da-
combounatocoii:- J. ' -l ^
fenfiu damages. lY^-igQs; nouc arc naturally bound to this, who did not contribute to them, by acling or omitting contrary to their duty, nor received profit by them. Now, this is the cafe of fubje6ls for the moil part, when their rulers are making the moft injurious attempts upon their neighbours.
As to that plea, that " he who by any contrivance, '^ or any goods acquired for his own benefit, or by *^ any office conftituted for that end, does fome de- triment to others, * ihould either compenfate the damages, or, on the other hand, give up the con- trivance or goods, and furrender the perfon who by
* This is the natural foundation o( the acl/ofies rnxalcs et depauperie in the civillaw •f^, 9. t. I-. Si (juadnipes pai'perk?n &c.
Masters and Sekvai^ts. 207
" abufe of his office did the damage." This may hold Chap. 3. againft the original citizens who chofe the unjufl; go-L/VX>' vernors, or conftituted fuch a plan as naturally excites to injuries, or againft any citizens who can either rc- ftrain or turn out their magiftrates. But even in thofe cafes, it fliould be left to the option of the citizens now taken captive or conquered, whether they will quit fupporting their unjufl: governors, and deliver them up if they can, and enjoy their old Hberty; or compenfate all damages, and give proper fecurity, fuch as wife arbitrators Iball appoint, againfl: future injuries, and retain their governors. -j-
IV. If conquerors had any regard to iuftice, we ^^^-'''■- "'•■^•■"^ ihould oftener fee them inliiimg on fuch delivery of ">- the unjufl: governors, and their counfellors, and mi- nifl:ers, to thofe they had wronged, and the innocent people left to chufe either a new form of polity, or better adminiftrators of the old one. But this plea of compenfation mufl: be a vain pretence when 'tis ufed after full compenfation is taken by force, or offered by the party difl:reffed ; as it would generally be offered by any fl:ate, rather than the innocent fubjects fliould uni- verfally lofe their perfonal liberty, or the fi:ate become a province to the conqueror. Without any of this cru- elty full compenfation of damages, and fufficient fe- curity againfl: like injuries, fuch as prudent arbitrators would appoint, might always be obtained by the vic- torious. Thefe confiderations abundantly fliew how injurious and cruel it mufl: be to enfla^ve the common
f See c. 6. of this book.
2o8 The Rights ^//^Duties of
Boor. Ill.fubjecls of any ftate, with their poftericy, on account Ky^Y^\j of any unjuft war their governors had been engaged in. jvh.t ,^u\uUi As to thofe who bore arms, whether as common Cr.^"/"^."foldiers or inferior officers, but had no fhare in the unjyfiv^ar, p^j^Uck couufcls ; thcy are generally invincibly igno- rant of the inj uftice of their caufc. In fome flia tes they are compelled by force to inlift; and when they do fo voluntarily, 'tis upon a general prefumption of being employed only in juftcaufes; and after inlifting it be- comes a capital crime to difobey their fuperiors. When this is the cafe, it is barbarous to talk of punifhing fuch captives. We have a right to defend ourfelves, or profecute any right of ours which they are obftruc- ting, by any fatal violence againft them while they oppofe us. But when they are captives, and can hurt us no more, we fhould remember that they were gene- rally innocent, and that even fuch as knew the in- juftice on their own fide, and were criminal in bear- ing arms againft us, yet did fo, under the ftrongeft temptations, fince it was capital not to have obeyed the commands of their fuperiors. We Ihould confi- der the common variable fate of war, and that our example in any fe verity may prefently provoke our ene- mies to give the braveft of our fubjecls the like treat- ment; and that fuch precedents will be followed by unjuft conquerors, as well as thejuft. We may in- deed detain fuch captives, and oblige them to humane temporary labours, to increafe our own ftrength, and weaken the enemy's, 'till juft terms of peace be ob- tained. Or we may fettle them as fubjedls in our own
Masters ^;/^ Servants. 209-
country: but any more fevere treatment feems con- Chap. 3. trary to humanity, and the regard we fhould have to ^'^"^^"''^^ the Q;eneral 2:ood.
V. Thefe feem the general rules or laws of nature diSy'c7rT'' as to captives. There may polFibly happen fome fin- gular cafes or pleas of neceffity, to juftify fome exti-a- ordinary fteps, beyond thefe above-mentioned. Thus, if there be no other way to prevent or deter a bar- barous enemy from the moft cruel treatment of our fellow-citizens who have fallen into their hands , than by making reprifals on fuch captives as we have taken: if we can avoid great effufion of the blood of our fellow-citizens, and bring an unjufl: enemy to rea- fon, or deter him from perfifting in his injurious de- figns, by exercifing fome extraordinary feverities to- wards fome captives, whofe fafety the enemy may have much at heart, and continuing thefe feverities, till the enemy be brought to reafonable terms of peace. If we are fo weakened by the war we have been engaged in, by the injuries of the enemy, that we cannot be preferved in our independent ftate, without a confi- derable acceiTion made to our ftrength, at the expence of the injurious ftate, fuch as the labours of many captives, or their tranfplantation into our country, e- ven without their confent, may make to us : in thefe cafes, fuch fevere conduct maybe juftified, when gen- tler meafures would be ineiFecftual.
But without fuch manifeft necelTity, the detaining HcredUan jia- of captives, efpccially women and children, in perpe-^'""-^"''^'''"""'' tual (lavery, mud be moftunjuft and inhuman. For,
Vol. II. Dd
2 10 The Rights j/^^ Duties of
Book III as we fliewed formerly *, the children of fuch as were \s^/^W^ juftly enflaved Ihould be looked upon as free-born, on- ly perhaps as perfons indebted to the value of their nccelTary maintenance. " Had the conqueror, fay fome "■ authors, ufed the utmoft rights of war, by killing *' the parents, the children had not come to life: they ^' owe therefore their lives and all to the conqueror." But this proves nothing. Conquerors have no right to murder captives in cold blood. And tho' they might with impunity have done fo, their abftaining from fuch wickednefs gives no right to theirs or their chil- drens fervice. At this rate, one would be obliged to be- come a Have to any powerful pyrate or robber who had fpared his life ; or to any generous man who re- fcued him from fuch dangers. Princes may thus owe their lives to midwives, furgeons, or phyficians, who might have murdered them with impunity. Are they therefore, with their pofterity, fubjecled to flavery ? Grant that the parents might have been put to death juftly, yet their children come into life innocent, they are rational beings of our fpecies, the workmanfhip of the fame God in their bodies and their fouls, of the fame materials with ourfelves and our children, and endued with like faculties. They incur an early debt for their maintenance; but, as foon as that can be difcharged by their labours, or by the generous in- terpofal of any friend, they are as free as any of hu- man race. ,r^/ r/irJi ^^- ^^ ^^^^ detains another by force in flavery, is
'bet Oi to iht ^ g^g ^Ijq JjqqJ^ :•_ ^_ ^j^
Masters fl';?^ Servants. 211
always bound to prove his title. The flave fold or car- Chap. 3. ried into a diftant country muft not be obliged to prove a negative, that " he never forfeited his liberty." The violent pofTeflbr mufl: in all cafes fhew his title, efpecially where the old proprietor is well known. In this cafe, each man is the original proprietor of his own liberty. The proof of his lofing it muft be in- cumbent on thofe who deprive him of it by force. The Jewilh laws had great regard to juftice about the fervitude of Hebrews, founding it only on con- fent, or fome crime or damage, allowing them always a proper redrefs upon any cruel treatment; and fix- ing a limited time for it, unlefs upon trial the fervant inclined to prolong it. The laws about foreign flaves had alfo many merciful provifions againft immode- rate feverity of the mafters. But under Chriflianity, whatever lenity was due from an Hebrew toward his countrymen, muft be due toward all, fince the diftinc- tions of nations are removed as to the point of hu- manity and mercy, as well as natural right. Nay, fome of thefe rights granted over foreign flaves may juftly be deemed only fuch indulgences as thofe of po- iygamy and divorces, granting only external impuni- ty in fuch pradlices, and not fufKcient vindication of them in confcience.
The duties of this relation in its fevcral kinds may eafily appear from the nature and caufes of it. The fervant is bound to fidelity, and willing fervice, as in the fight of God, by whofe providence this lot is ap- pointed to him j and the mafter to mercy and lenity,
D d 2
212 77;^ Motives /(? ^
Book III. as toward a fellow-creature in lefs fortunate circuni-
v^yv^^y ftanccs, who 3^et has the like afFe6lions, and is capable
of the like virtues, and happinefs or mifery with him-
felf ; and to pay faithfully his wages, and perform any
other promifcs he has made to him.
CHAP. IV.
The Motives to conftitute Civil Government.
c\v\\ fc^vtX IF all mankind were perfectly wife and good, dlf- ^fs\!n'lTil ccrning all the proper means of promoting the
^ravu;, ;/ mc.u gcnetal happlucfs of their race, and inclined to con- cur in them, nothuig further would be wanting; no other obligations or bonds than thofe of their own virtue and wifdom. The necefllty of civil power there- fore mull: arife either from the imperfection or depra- vity of men or both. Hflw men au Whcu many of the antients fpcak of man as a fpe- t77«/.{r/"'*''^^^^ * naturally tit for civil fociety, they do not mean that men as immediately deilre a political union, or a ftate of civil fubjcdion to laws, as they deilre the free fociety of others in natural liberty, or as they defire marriage and offspring, from immediate inflinCls. 'Tis never for itfelf agreeable to any one to have his adti- ons fabjev5i: to the dire6tion of others, or that they fhould have any power over his goods or his life. Men mull have firft obferved fome dangers or miferics at-
* Thus Ariftotle and Plato often call man ^aJw troMTu^V, I>ut Ariilotle owns tliat he is tru/,ru«r»Kvy Ma^^9v r pi/A-frffti'^. NiQQVl, 1. Ylii. C. 12.
POLITICAL Union. 21^
tending a ftate of anarchy to be much greater, than Chap. 4. any inconveniencies to be feared from fubmitting their'" affairs along with others to the direction of certain governors or councils concerned in the fafety of all : and then they would begin to defire a political con- ftitution for their own fafety and advantage, as well as for the general good. As men are naturally endued with reafon, caution, andfagacity; and civil govern- ment, or fome fort of political union muft appear, in the prefent ftate of our nature, the neceilary means of fafety and profperity to themfelves and others, they muft naturally defire it in this view; and nature has endued them with aclive powers and underftanding for performing all political offices.
'Tis alfo natural to men to efteem and admire any fingular abilities difcerned in others; fuch as courage, wifdom, humanity, juftice, publick fpirit. They na- turally confide in perfons poiTefTed of fuch difpofiti- ons and love them. They are willing to commit their im.portant interefts to their direcf ion, and have a zeal to prom.ote them to honourable offices and powers of managing the common concerns of fociety.
The (VI
II. The evils to be feared in anarchy refult plainly J^.r.^ ^^^.;^ from, the v/eaknefs of men, even of thofe who have''"'"' ■^'''*'".''' no unjuft intentions, and partly from the unjuft and corrupt difpofitions which may arife in many. 'Tis wrong to afTert that there is no occifion for civil po- lity except from human wickcdnefs. The imperfec- tions of thofe who in the main are juft and good may require it.
21A T/:>eMoTivF.s to a
Book III. I. Among good men there may be different opl-
^^^^''^^' nions about the point of right. Thofe who intend
diffrc,>iepir:io,:s xio injuftice, nay, who refolve to a6l the jufi: part on
c/rigot. ^jj occafions, yet may be miftaken and too pofitive
under the fecret influence of felf-intereft, and may be
fufpicious of the artifices of others to influence any
arbitrators they could choofe, and confident of their
own flrcngth may decline arbitration and venture
upon the hazards of violence.
ir,fc r:,krs can A^ain thc morc inQ;enious may Invent many ufe-
bcttcr frour.tc O , O • n J
the good of ell. ful contrivances tor a common mterelt^ and yet can- not fatisfy the more ftupid or fuch as are prejudiced, about the expediency of their defigns ; by reafon of their weaknefs, or fufpicions of the hurtful artifices of the contrivers. 'Tis well known how hard it is to make the vulgar quit their own cuftoms for fuch as arc far better in agriculture or mechanick arts. And how much more difficult muft it be to obtain their concurrence in any great and noble defigns of diflant advantage to whole nations, when they coft much prefent labour and expence. As there are in our fpe- cies men of fuperior genius and penetration, and of more extenfive views, nature points them out as fit to dire6l the actions of the multitude for the general good, upon proper fecurity given by them for their ufmg faithfully the powers committed to them. ihfvifcTjmo, ^* -^^^ ^^^ corruption of mankind makes civil po- rcquire civil \[^y appear more necefifary. As many are covetous, or ambitious, and unjuft and opprefTive when they have power 5 and are more moved by prefent profpeds of
POLITICAL Union. 215
gain, than deterred by any moral principles or any Chap. 4. dlftant profpeds of future evils to redound to them from their injuries ; a remedy muft be provided againft the evil difpofitions of fuch men ; a remedy that is prefent and fenfible, and no other can occur fo effec- tual as a civil power with force fufficient to maintain juftice and infli6l prelent punilhment on fuch as are injurious. Tho' a majority or even each individual in a great multitude were corrupt and unjuft, yet fuch men united will feldom ena6l unjuft laws. There's a fenfe of right and wrong in all, with a natural indig- nation againft injuftice. I may, for my own pleafure or gain or at the inftigation of fome pafTion, counter- aft my fenfe of juftice; but I ftiall be abhorred for this injuftice by others who gain nothing by it. Another may for his gain in like manner counteract the rules of juftice, but I and all the reft ftiall abhor him for it. The like ftiall be the difpofitions of all, and thus they never will concur to enact unjuft laws, tho' not one of them had fuch a ftrible principle of juftice as would make him adhere to it in oppofition to any high intereft or paftlon of his ovm. Each one too may dread mifchief to himfelf from the injuftice of others -^ and may fear their high refentment on account of the injuries he may attempt againft his neighbours. A counfel therefore of many will never agree to al- low the injuftice of any of its members againft others of them. As none approve injuftice but they who gain by it, no avowed injuftice toward any of the members will be allowed by publick authority, except
2 1 6 Tic Motives to a
Book in.whcrc the whole power is committed to one, who may ^/VX_; pofllbly allow himfelf in injuftice toward his fubjecfts, or where it is committed to a few,who may fomi them- fclves into a feparate cabal from the people, and op- prcfs the people avowedly, while they maintain juf- tice among themfclves. Againft thefe two dangers precaution muft be taken by the plan of power that is to be fettled. , . . 'Tis true that in a ftate of anarchy there is the fame tj in anarchj. natural iudignatiou agamll mj ullice ; and that even m bad men, when they do not gain by it; and they fome- times as well as good men, are prone to aiTift the inju- red. But in all dangerous efforts, whether in profecu- tion of right, or in repelling injuries, through human imperfedion, there can feldom be good fuccefs with- out Q-overnment and an union of wills. Some honeft men from cowardice may decline their part in fuch dangerous fervices: others of fufficient courage may differ about the meafures which are moil prudent ; and through opiniatry, pride, or miftake, may ftand obftinate againft meafures propofed by others. Wife men by confidering or experiencing thefe dangers, and reprefenting them fully to others, have probably en- gaged great numbers to concur in the only remedy againft them, viz. the conftituting fome men of ap- proved wifdom and juftice the arbitrators of all their differences, and the directors in all meafures neceffa- ry for the fafecy and profperity of the whole; arming thefe rulers alfo with fufficient power to enforce their dcciilons and orders upon fuch as are refra6lory, by
POLITICAL Union. 217
engaging to employ each one his own force according Chap. 4. to their direclion. ^<y\^\^
III. Great mifchiefs no doubt may often arife from Badphns of plansof pohtyrafhly and incautiouflyconftitu ted when ^lugLZ "''* power is mtrufted in bad hands. And yet an imper- fe6l form of pohty, and much more a very wife one, has innumerable advantages above anarchy. The ge- neral happinefs mud be more effectually promoted, and juftice better adminiftred, by the arbitration and council of wife unbyaiTed men, who can enforce their defires upon the refractory, and make them concur in any good defign ; than if all men, good or bad, wife or fooliih, followed their own feparate councils. And in all forms of polity this is ever profefTed as the in- tention of the inftitutors that the power fhould be lodged with the wife and juft ; tho' the precaution taken for it is often very improper and infufEcient. Where this intention is obtained, nothing can be a- wanting for the greateft happinefs in this world which human means can procure; as a people Ihall be wifely defended from external dangers; injuries among them- felves fhall be reftrained ; juftice prudently adminif- tred ; and all arts cultivated for the improvement of life; and all orders, the weak and imprudent as well as the wife, the felfifh as well as the generous, enga- ged or compelled to contribute toward the general interefl:: and wife laws will civilize the manners and even improve the tempers of a people to virtue. How imperfe6lly thefe ends can be obtained in the mofl to-
Vol. II. Ee
2-1 8' TieMoriv^s to a
FooK iii.lerable ftace of anarchy we can fuppofe, mufl: at the K^y^v^xj fidl view be manifeft.
B.dp'Mt....n But we muft not hence conclude, as fome have ''"^^'^"''T'rafhlv done, that the very worft fort of polity is bet-- .9 reproub /.^gj. ^ji^g^j^ thc beft condition of anarchy, lis true that "" ^'"'^' in the very worft poHties there are fome good laws, and juftice is often well adminiftred in cafes where the incerefts of the governors or their favourites are not concerned, and the whole body is often protefted from external invafions by united force and council: which are advantages not to be hoped for indeed in the worft condition of anarchy. But in a ftate of anarchy, where thc manners of a neighbourhood are not yet cor- rupted by eafe,wealth,and luxury,theremightbemuch happinefs, and fimplicity, and innocence of manners,, much zeal for mutual defence, and for preferving juf- dee toward each other,and even fome confiderable im- provements in arts. And in bad plans of polity, by the cyranny, ambition, and lufts of the governors, the great powers committed for the publick good may be em- ployed in a general opprefTion of the people in rapine and violence, and the bearing down every thing free and- generous in their fentiments. 'Tis enough on this fub- ject that all the advantages defirable, or that could be hoped for in a ftate of anarchy, ftiall be much more effectually obtained and fe cured by a good plan of polity. That corrupt forms of polity may do great mifchief, is no objedion againft a civil ftate in gene- ral, but rather recommends it; as the corruptions of die beft things may be moft pernicious,.
POLITICAL Union. u^
'Tis tlie bufinefs of rational agents therefore to Chap. 4, exercife their fagacity in contriving the beft plans o: civil power, and fach amendments of thofe already conftituted as are requifite for obtaining the ends of it; and not to reje:^t the moil effectual means of pro- moting the general good, becaufe they may be per- verted by the folly of men into engines of mif- chief. A Hate of anarchy has not of late been expe- rienced for any confiderable tim.e. Thofe who tryed it of old, found it perhaps tolerable while fimplicity of manna's continued, but when corruptions encrea- fed they found it necfffary to contrive civil polity. And in the worft plans of it, many evils are prevent- ed, and juftice often maintained, and the people pro- tected from injuries. Inftances of this kind, v/here the civil powTr is ufeful, are far more numerous than thofe in which it is abufed; which would make one hefitate in allowing that the imperfect and foolilh plans of pvower which have appeared in the world have in the whole done more mifchief than good,occafioned more evils than would have enfued from as long a continu- ance of anarchy.
The natural worth of civil power is often overlook- ed; we are not much ftruck with the ^ood it does in a?-''^" ''' ''"" general protection and adminiftration of juftice. This is only what we ordinarily expe6l from it. But every perverfion of it, in any flagrant a6ts of tyranny and op- preifion, deeply affects our minds, and is long remem- bred with indignation. Even as in the adminiftration 'of nature, and in the general condition of human life^
E e 2
canjcs
220 T^^ Motives to a
Boo:; III. many Imagine a fuperiority of evil from their being k^/'^Tkj much moved with the feveral calamities of men thro' their natural compalFion ; while they overlook the con- ftant and ordinarily expected train of enjoyments and bleffmes conferred on mankind. This however fhould not hinder men, when opportunities offer, and there is any hope of fuccefs, to attempt, even by fuch vio- lence as may occafion fom.e temporary anarchy, to ob- tain fuch amendments of any foolifli concerted plans of policy as may be neceflary to prevent the perver- fion of it, and may procure greater good than what overballances thefe temporary inconveniencies in the violent chano;c. rrh.tfortof IV. As the grand inducements to eonftitute civil ""';"'■ -^'''■' power were " the obtaining; defence ao-ainfl: the in- '' juries to be feared from men, and the promoting the *' general happinefs by the concurring force of multi- '^ tudes." Thcfe ends cannot be obtained unlefs o-reat numbers are either brouQ;ht to aoree or unite in their inwardfentiments and inclinations,or,if that be impof- fible, are brought to acl as if they thus agreed: for otherways the force of the whole body cannot be em- ployed for thefe purpofes. Now the latter fort of a- greemcnt or. union may be obtained if a " multitude " eno;ao;es to fubm it their actions and force to be di- '* rented by one perfon orcouncil, for the general inte- '^ reft, and particularly for competing any who may '^ thereafter prove difobedient, to return to his obe- '^ dience to this perfon or council." When thus a laroc body of men are united under, one Q-Qvernmcnz
Political Union. 221
they make one body politick where the will of the Chap. 4. ruling perfon or council is, as to external effect, de- ^■^^'"'"'^^ cerned to be the will of the whole.
The natural end and fole purpofe of all civil power, Zi/^tr/zf as it is acknowledged on all fides, where men retainp;';^;^/,/,/;. any remembrance of their dignity as rational crea- '^^'*'''*' tures, is the general good of the whole body^ in which the governors themfelves are included as a part; and that a more or lefs important part according to their abilities, and inclination to promote the general good. All chii government in this differs effentially from the defpotifm of a mafter over (laves, that this latter is underftood to be a power for the advantage of the governor. Defpotick, and civil or political, are con- trary terms.
That civil power alone can- be jnftly affumed or claimed by any governor which is neceffary or condu^ is j,!i'-Lhuh cive to the profperity of the whole body united; whatl'^./zl/A-i^ is not fo is unjuft upon whatever pretence it is affu- med: as 'tis plain, from the general principles of mo- rality, that the pleafures or interefts of one, or of a few, mufl: always be fubordinated to the more exten- five interefts of great numbers. Any contra6l or con- fen t conveying ufelefs or pernicious powers is invalid, as being founded on an error about the nature of the thing conveyed, and its tendency to the end profef- fcd and acknowledged on both fides. The fubjecl profeffes to convey powers only as they are conceived ufeful to the whole body ; and the governor profclles
222 T/je Motives fo a
Book TIL to demand no other. As to other claims of power ^^V"V; they ftall be confidered hereafter. Tier, ore r.i- V. Whatever love men have to full liberty, what-
•Ways juji mo- . . ..•■ C r r
fives to a fir, ever con tmgent mconveniencies they mayrorelee rrom *7^r«/^«r fubje6lion to civil power, they may lUlJ have fufl^cient "-^' motives to fubmit to any tolerably contrived plan of
polity. Some authors have given an unnatural account of the burdens impofed by a political ftate; reprefent- ing only the cafual dangers men are expcfed to fome- timcs in civil poHty, as if thefe were fome conftant misfortunes in that Hate, and peculiar to it, without confidcring that people are lefs expcfed to them in polity than in anarchy.* But then, to engage men to fubmit to thefe hardlhips, they aggravate as much as poffible the mifchiefs of anarchy even far beyond the truth. In polity, governors have a power of life and death, fay they, over fuch as they judge to be guilty of crimes. But this is no more power than any of our fellows will aflume over us in natural liberty; and our profpect of a fair tryal and juftice is much greater under a civil judge. The magifti*ate claims another power over life, in compelling men into the molf dan- gerous fcrvices for the common defence. But fuch dangers we muft have as frequently been expofed to alone, with voluntary affiftants fuch as we could find, in defending ourfelves in a (late of anarchy. The ma- giftrate claims a power over our goods, and exacls fome part of them in tributes, for f >me general inte- reik of the whole body. But then a good magiilrarc
« There is toe much of this in PufFcndorf as well as in Hobbs.
roLiTicAL Union. 223
employs thefe tributes for Increafing and defending CrtAP. 4. the acqulfitions of the whole body; and in anarchy ^^-/VX> each one muft have been at greater expences for the like purpofes, and not with fuch profpe6ls of fuccefs. If each one in polity is obliged to a great many pe- culiar expenfive or laborious duties for the benefit of the whole body or of particular fellow-citizens, each one ihares in the advantages of like fervices perform- ed by others. And thus any tolerable ftate of civil polity muft appear inviting and eligible to all, even from felf-intereft, as well as from our more generous difpofitions ; as 'tis plain that an eminently wife and good man, or a council of a few of like character, di- recfting the conduct of a large body of men, will much more effectually promote the intereft of all, than the fam.e number could do while each one followed his own meafures. Thefe confiderations fully reprefented may have engaged multitudes to unite voluntarily in- to one body, and to be directed by one council.
VI. Nor is there any oppofition to this dodrine in th mth-vu:- what fome ingenious men alledge that " the firft po-^7/'',«ir«K« *' litical unions have been formed with the moft un-""'^'* " juft defigns ; that bad men have firft thus united and " founded cities, with a view to plunder and opprefs " their neighbours." Grant that this v/ere true, tho' 'tis not certain even about the firft ftates, and much lefs fo about the original of all ftates in fucceeding. ages ; it only proves that bad men at firft fell upon- this contrivance, or firft difcovered that a political uni- oawasof great confequence to the defence andfecurity.
2 24 77;(f Nature q/^Political Union.
Book III of a large body, and to theincreafe of all their advanta- K^'^V\j o-cs. The apprehenfion fuch men might have been un- der ofthe j uft refentments of their fellow-creatures, in- curred by their injuries, may have firft roufed their in- vention. Whereas good men, who had no jufl: caufes of fear, might not think fo foon of exercifing their inventions in the arts of defence. But as foon as any political bodies were formed; all thefeparate families in the adjacent country mufl: foon fee the necefTity of Kke affociations, and that from the motives already mentioned. M,„ not at To alledge that men were firft compelled by force £L3,!fr'-to fubmit to civil power, muft be very incredible ; as tknui motna. ^^ q^^ j-^^^j^ couldbc fuppofcd to havc ftrength or force fufficient to compel confiderable numbers into fuch fubmifTion: and if he had the afTiftance of others in this compulfion, thefe others muft have been previ- oully fabjedled to his civil power: and thus a politi- cal union muft have been fubfifting before any confi- derable force could have been ufed to compel men into fubjection. 'Tis true we find that in earlier ages fome heads of families had very numerous trains of domefticks of one fort or other. But we are not to regard names in this matter, but the real powers. Such heads of families have had the powers of civil gover- nors. And men have been invited into their families, or little ftates, by fuch motives as are already alledged. Bat, what mayfuperfcde many of thefe debates as to our prefent defign; we are inquiring into the j uft and 1^yife motives to enter into civil polity, and the ways
The Original o/'States. 225
it can be juftly conftituted; and not into points of Chap. 5. hiftory about fads. If in fad the originals of many gO'\y^w^\j vemments have been very infamous and unjuft; this may abate the pride of thofe poor mortals, who hav- ing got into poflefTion of power firft founded by the villanous ads of their anceftors preying upon the weak- nefs, the credulity, the mutual contentions, or the fu- perflitions of their fellows, have their imaginations fwelled with notions of fome facred dignity or divini- ty in their ftation, and rights of government, and would impofe the fame notions upon others, who are far fuperior to them in every worthy quality.
CHAP. V.
The natural Method of conflituting Civil Go- vernment, and the ejfential Tarts of it,
I. HTHE extent and ends of civil power fhew it X-O^JZLnJoZ -*' be quite different from the parental, tho' the"jf;*;''„ "' ""' affedions of good magiftrates lliould refemble thofe of parents, in purfuing conftantly the good of the fub- jeds; and hence fuch governors obtain the moft ho- nourable name oi fathers of their people. But paren- tal power is founded on a peculiar natural affedion, and the want of reafon in their children; it gradually diminifhes as their reafon advances, and ceafes when it is come to maturity. The civil power is over the adult, and is deftined to perpetuity, nor is any prince the natural parent of his people. Mere violence, or •Vol. IL F f
226 TZ'^ Original o/States.
Book in.fLiperior ftrength, can give no right. When therefore God has not by fupernatural revelation named gover- nors, and fpeclally appointed the quantity of power to be committed to them, (which never was the cafe in any nation) the extent of their rights, and of die obligations of fubje6ls, muft be determined by the ends of the political union, or by fome original con- tract. The only natural method of confti tuting or con- tinuing of civil power muft be fome deed or conven- tion of men. And as no rational beings, who have any fore-thought or attention to their own interefts, or thofe of perfons dear to them, can be happy while their important rights are not tolerably fecured to them, but depend on the variable, or capricious, or infolent wills of others ; and as the general happinefs is the fupreme end of all political union ; and fome tendency to it necefTary to the juftice of any inftituti- on ; no government or power claimed can be juft' which is not either fettled upon the confent of the people, or fo calculated, that upon a little experience of it, they fhall heartily confent to it, as fufficiently fecur- ino- CO them all their valuable interefts. If throuoh ftu- pidity, levity of genius, or an abject fpirit and long cuftom many acquiefce in other forts of politicks, v/here there is no fuch fecurity ; this will not prove the juftice of the powers affumed; fmce they feem already to have had the very worft effe6ts upon the publick, by debafmg the fpirits of a people, and excluding every thing wife and manly, and all the moft rational fatisfactions of life.
2 2*7
ii/bw Bodies Politick are conftltuted,
II. Civil power is moft naturally founded by thefe Chat. 5. three different ads of a whole people, i . An agree- ^y'W^ ment or contradl of each one with all the reit, that /.-^rTl;;,!" they will unite into one fociety or body, to be o-overn-"'^""' ed in all their common interelts by one council. 2 . A decree or defignation, made by the whole people, of the form or plan of power, and of the perfons to be Intrufted with it. 3 . A mutual agreement or contract between the governors thus conftituted and the peo- ple, the former obliging themfelves to a faithful ad- miniftration of the powers vefted in them for the com- mon intereft^ and the later obliging themfelves to o- bedience.
Tho' 'tis not probable that In the conftitution of ^vhen p^-^r the feveral ftates men have generally taken thefe three/.if f«f .'^L" regular fteps; yet 'tis plain that in every juft confl:i-rJ2! '"'*'^' tution of power there is fome fuch tranfaction as im- plicitly contains the whole force of all the three. If a people dreading injuries from each other, or from fome foreign force, agree by one deed to conftitute fome wife, juft, and brave man for their monarch; they certainly alfo agree with each other to unite into one body to be governed by him. And he by accept- ing this office, which all know is defigned for the good of the whole body, and is conferred only for this pur- pofe, implicitly engages for a faithful execution of it for this purpofe : and the people exprefly engage for obedience. The fame is the cafe in conftitutino; a fe- nate. And even in the founding a democracy there is always fome deed equivalent to all thefe three. The
Ff 2
2 28 How BoDIEsPoLITICKr?/^^
BooFiIII.fii'ft contract is exprelTed, and fo is the Intermediate \y^r'\j(\QCxcQ\ as all agree to be governed by what is deter- mined in the popular affembly or by the majority. And the third ftep is obvioufly implied ; as they all profefs to unite for the common fafety and intereft. Each one therefore binds himfelf to confult the general fafe- ty and intereft in the fuffrages he gives in the popu- lar affembly, and thus promifes on his part to go- vern well ; and each one is underftood to bind himfelf to obedience to the decrees of this affembly. The fame deeds are either evidently exprelTed or implied when any perfons voluntarily join themfelves to a ftate already conftituted, and are received as citizens. They agree to unite into the body, they implicitly confent to the decree about the form, and receiving protec- tion and all political advantages, they promife obe- dience. ]wv p.-cnt', ni. Thefe tranfactions fhew abundantly how this T'!;"''''*-''^'"-''political relation and the enfuing obligations may na- turally arife. But the manner in which they bind po- fterity is not fo obvious. And yet all ftates look upon the defccndancs of fubjecls to be in the fame political relation, and under the fame obligations with their pa- rents; tho' minors are not decerned capable of confent- ing, and therefore no tacit confent to be prefiuned: nor would one be free from thefe oblio-ations, tho' his iirft a^l, when he came to maturity, were declaring his diffent, or entering into a confpiracy with a foreign power againft the llate in which he was horn. To ex- plain this point let us obfcrve.
CONSTITUTED ^W CONTINUED. 229
1. Firft, that as to any hoflile attempts nnjuftly Chap. 5. made by any perfons, immediately upon their attain- ing to maturity, the flate has undoubted right both of defending itfelf againft them, and punifhing the authors of them, be they its fubjects or not. Indeed all ftates treat minors on fuch occalions as their fub- jects, and that juftly; for
2. The parent in uniting with others in this politi- cal body ftipulates protedion, and the advantages of a civilized life, not only for himfelf but for his fami- ly, and this in any tolerably conftituted ftates is a ne- gothim utile gejlum, or a tranfaction moft beneficial for them. And as during minority they have enjoyed thefe valuable and neceflary advantages, they are na- turally bound to all thofe terms, which could reafon- ably have been demanded in conlideration of their fharing fuch advantages. Now no terms are more reafonable than thefe, that they fliould continue to ftrengthen and preferve this allbciation to which they are fo much indebted, and not defert it in time of danger, or at any time without reafonable compen- fation for the advantages they enjoyed. Nor could any fuch aflbciations be fafe if it were left entirely free to all as they came to maturity, upon any caprice, to difunite themfelves from them, without any compen- fation.
3. And further. All fuch as derive any inheritan- ces, efpecially lands, from their anceftors, may be un- der a further bond; as the anccftor may have juftly fubjecled thefe lands to any wifely conftituted. civiL
2-^0 How Bodies Tolitick are confiituted and continued.
Book III. power, fo chat no peifon fhould have a right to hold ^'them unlefs he alfo fubjefted himfelf to this power, and became a member of this political body. Tis a- bundantly obvious, that no fociety could be fafe un- lefs its whole territory were under this burden ; fo that no pcrfon difunited from the ftate could hold lands within it, into which he might introduce fo- leio-n force, or which he might make a refuge to all criminals and confpirators. Such therefore as claim thefe lands from their anceftors muft take them un- der that bond of civil fubje6tion conftituted by their anceftors ; unlefs the civil polity be fo contrary to na- ture, and the intereil of mankind, that the iniquity of the contra6l, made by the anceftor, would have afford- ed to him a jufl: exception to its obligation, as well as CO his defcendants.
4. But when a ftate is in no prefent danger, it feems contrary to humanity and juftice to make it a trap to its fubje6ls, fo as not to allow them, upon any ratio- nal profpe6l of advantage to themfelves, to leave it, and unite themfelves to any other body politick, pro- vided that they fell their lands to fome remaining fub- je6t, and make compenfation for any advantages they derived from the flate at its expcnce. As to this com- penfation, it is indeed generally made by all fubjefe who have not enjoyed fome fpccial favours, by their contributing annually during their refidence in it to- ward the publick expence; as all men do, even mi- nors, who either pay taxes on lands or other goods ; or confume goods upon which cuflcms or duties arc
Consent 7iot always necejfary, 2 :? i
paid. Compiilfory methods of detaining fubjecls , Chap. 5. where there is no pubhck danger, are feldom juit, andO^'VA^ never thought necelTary, except in fome wretched and iniquitous political conftitutions. But fuch as conti- nue after they are adult, and fhare the prote61ion, and other advantages of fubjeds, are indeed * juftly deem- ed to have confented, and to be under the fame obli- gations with the old citizens who firft formed the po- lity. But they have alfo the fame juft exceptions a- gainft any thing fraudulent in the original contract, and the exception arifmg from error in the effential purpofe of it. Of which more hereafter.
IV. From the fupreme notion of juftice or right it stair, may h muft appear that however confent is the natural me-^^;;^t«/r.li thod of forming bodies politick or of conveying civil ''"•/'"^• power; yet if any prudent legiflator, armed with fuf- ficient power, can fettle a plan of polity, truly effec- tual for the general good, among a ftupid prejudiced people, at prefent unwilling to receive it; V\^hen yet there is all rational ground of concluding, that upon a fhort tryal they will heartily confent to it; he acT:s with perfecl juftice, tho' in an extraordinary manner; fince this condu6l muft in the whole tend to ereater good than leaving a people to be made miferable by their own ftupid and pernicious prejudices. But com- mon fenfe at once ftiews that abfolute hereditary mo- narchy cannot be fettled upon this pretence. As it can never tend to good to have all the interefts of
* This IS rather an obligation qiiaji ex contra^u than a tacit, tho' both may often be pleaded againd them.
0 22 States ^i" ^//^ Person.
Book III tlioufands or millions fubje6led to the will or humour L/^v'^VJ of one of their fellows, as fubje(fl: to vice and folly as any of them, nay more expofed to it by the unbound- ed power committed to him, and the pride, and flat- tery which always attends that elevation. ccnffutnot.i- And on the other hand; if the majority of a rafh '''"•^^ "^^'^"""-' multitude have confented to a pernicious plan; and afterwards iind its deftruflive tendency; as they now fee that they erred in the efl^ential fubje6l of the con- tract; taking that plan to tend to their good, which they find has the moft oppofite tendency; they cer- tainly have a juft exception againft the contra6l, and are free from its obligation. They may infift upon a new model of polity: nor can their former governors have any plea for compenfation of damages ; as the error was as faulty in them as it was in the people. They are not indeed generally damaged by the change. They may infift to be placed in as good circumftan- ces of fortune as their families were before they were raifed to this civil power; and a people may be bound to comply with this demand, when it is confiftent with their fafety ; but if it is not, they are not bound to fuifer any immoderate or dangerous power ,which may be employed for enflaving them, to remain in any one s hands ; much lefs in thofe who had, by an abufe of power in opprefTmg them, forfeited their right. Where a people is in no fuch danger, it may be the humane part to reftore to their depofed rulers their whole anti- ent fortunes, or even to enlarge them, that they may fubfift in a ftation fome way near to that dignity to
d otn-
States ^^ o;;^ Person. 2^5
which the rafh deed of the people had raifed them, and Ch a p. 5. enured their minds. v./VX^'
V. When numbers of men are thus united into ^ pcopich- focieties under one government for a common intc-'^T' crro"/n7tl refl, thefe focieties are naturally conceived as one per-"'-^^:" "" fon, having their feveral rights and obligations, diftinct^' "'"' from thofe of the individual members of them. Thus a fociety may have property in goods, and other rights, about which no individual member has any right to tranfa^l, without commifTion from the whole, or thofe whom the whole have entrufted with the manage- ment of them. The fociety may incur debts, and o- ther obligations, to be difcharged out of the publick ftock or goods, and not out of the private fortunes of the members. The fociety as one perfon may be bound by contra6ls, and by almoft all thefe caufes of obligation v/hich bind individuals, fuch as thefe ^i/a/i ex contractu and from damage or injury done. And in general, the common laws of nature, which bind individuals, bind alfo focieties, as to abftaining from injuries, either to individuals not in the fociety, or to other focieties, as to faith in contracts, as to the rights of violent defence and profecution, and as to cafes of extraordinary necefTity. For as the perfons who unite in the feveral focieties were antecedently in natural liberty and equality; the feveral focieties formed by fuch perfons are with refpecl to each other in the fame ftate of natural liberty ; and almoft all the fame ge- neral rules ftiewing what conduct is humane and con- ducive to the general good from individuals toward
Vol. II. Gg
20A Several Vh'^r^ of CiYi-L Vow E-K.
EookTII. individuals, hold alfo as to the conduct of one fo- K^yT^r'Kj ciety toward another. So that the law of nations, as ticll'Zch'iihx as this term denotes a fyftem of obligatory rules, {Z\flwi:!!l is very much the fame with the laws of nature in re- fpe(ft of individuals. As to fmaller focieties formed within a greater, by men previoully fubjcct to the meater, they are alfo deemed as moral perfons, but not in natural liberty ; having all their actions cog- nifable by the common power which prefides in the greater foclety, and limited by its laws. There are in- deed fome rules diflin6l from the law of nature, or the neceffary and unlverfally obligatory laws of nati- ons, founded on frequent cuftom and tacit conventi- on, of which we (hall treat hereafter. Thf urc:-r.-ry V. Thc fcvctal powers which muft be conveyed to i.i:.pw^rs. ^QYQYTioYS in civil polity are commonly divided into the * greater civil powers, which are alfo called the ejjential parts of fupreme power; and the f lefTcr powers, fuch as are not eiTential to civil polity.
The eiTential parts are fometimes fubdlvided into the J internal, or fuch as are to be exercifed among the fubje6ts within the fociety itfelf ; and the tranfient or external, fuch as are exercifed toward foreio-n nati- ons, or different and independent flates. As the de- hgn of civil power is both to promote peace and hap- pinefs, with an undifturbed enjoyment of all their rights, to the fubje6ls, by a good order at home, and to defend the whole body and all its members from
* Jura vinjejlatis viajora. f Jura majejlath minora. % Jura Imperii irnmaneniidy '. il trdnfeuntia.
The Parts of Ciwh Power. 235
any foreign injuries; and to procure them any advan- Chap. $. tages that may be obtained by a prudent condu6l to-^-^^^'"'^-^ ward foreigners.
The powers to be exercifed within the fociety are ^ukgl^.>uv:. thefe, I . That of dire6ling the a6tions of the fubjecls for the common good by laws requiring and reward- ing w^hatever is requifite for this end, and prohibit- ing the contrary by penalties ; determining and li- miting more precifely the feveral rights of men, ap- pointing proper methods for transferring or convey- ing them, as the general intereft may require, and even limiting their ufe of them for the fame general purpofe.
2. Another power of the fame clafs is that of ap- t^ uvsi^s o/ pointing in what manner and what proportion each'"''''
one fhall contribute toward the publick expences out of his private fortune by paying taxes, tribute, or cuf- toms, as the ftate of the people will admit. Thefe two branches of power are commonly called the le= giflative.
3. The power of jurifdic^lion civil and criminal ^^ ^J'l'.^t-"^'^ deciding all controverfies among fubjeds about their "^^v? rights by applying the general laws to them, and ex* ecuting the penalties of the laws upon fuch as are guilty of crimes which difturb the peace of the ftate. And for this purpofe appointing proper courts of juf- tice, and judges civil and criminal, and inferior ma- giftrates and officers to take care of the proper ex* ecution both of the ordinary laws and of the fpecial
Gg 2
'hates.
2^6 The Parts o/Civil Power.'
BooKlII.orders of ftate given by the fupreme governors: this v./^VX^'is ordinarily called the executive power.
A. The powers to be exercifed toward foreigners ,,.<:««j -^M/Vjire thefe two; the firft, that of making war for defence '!r-cn!J,fr/i^''' of zhc ftate, and for this purpofe arming and training the fubjects to military fervice, and appointing pro- per officers to condud them. And the fecond, that of making treaties, whether fuch as fix the terms of peace after a war, or fuch as may procure aUies and confederates to alfifl: in it, or fuch as without any view to war may procure or confirm to a ftate and its fubjedls any other advantages, by commerce, hofpi- tality, or improvement in arts: and for this purpofe the power and right of fending ambafladors or depu- ties to concert fuch treaties with thofe of other nati- ons. All thefe powers fome authors include under one general name, though fcarce exprefllve enough of them, the ^federative, including the power of war as _,/'"""'"''■■ well as peace.
Itir.iirt povcrs J-
nrc»cccj;jn. VI. Thcfc powcrs muft neceilarlly be committed to governors in every civil ftate, and they hold them in that extent which the original conftitution or the fundamental laws have appointed. But, as we ftiewed that fome extraordinary cafes of necefiity give fome- times to private perfons in natural liberty a right to recede from thefe laws which bind them in all ordi- nary cafes : 'tis the fame way with the governors of ftates, that in extraordinary cafes they niuf l have fome
• As Mr. Locke explains thefe three terms the leginative, executive, and federative, all the powers mentioned by Ariftotlf, Crotius, rufrendorf,and others, may be included iuoIli them. Thcfc divilions are of no great iroportaoce.
The Parts of Civil Power. 237
extraordinary powers, beyond the common limits of Chap. 5. the law, when thefe powers are neceffary for the gene- "^y^V^^ ral fafety, or for fome very important advantage to the publick. * Such powers are in every ftate, even in thofe where the laws mofi: rigidly fecure to each fubjecl: his liberty and property, and extend over the labours and goods of the fubjeds in great exigences, efpecially in thofe of war. Thus the lands of any fubjedl may jufl- ly be taken by the ftate when they are neceflary for fortifying fome important harbour, or city, or narrow pafs. The fhips of fubjecls may be taken for tranfport- ing of forces, fo may their provifions too or military ftores whether they agree to part with them or not. And, as we ftiewed in the cafes of necelTity, which may juftify fome fingular fteps taken by private perfons, that one who ufes this plea for his own behoof is al- ways obliged to compenfate damages done to others ; much more is a ftate obliged to compenfate, out of the publick ftock, to any of its fubjeds whatever lofs he fuftains, beyond the ftiare he ftiould have borne a- long with the reft of his fellow-fubjecls, by any fuch extraordinary fteps neceflary for the publick good. Such extraordinary rights extend over life as well as property.
VII. The fmaller civil powers commonly vefted ^^l''{^^^'"' the fupreme governors are not of fuch neceility to ci- vil polity ; fome of them may be awanting altogether in a ftate, or may remain in the whole body, and not
* Thefe powers fome call ^5w;«/«;a emlnciu ; others more properly tbe/ro" /w^vv'i evihiensy as they are not confined to tiie matters of property only.
2^8 The Parts ^Civil Power.
Book III. be Committed to any magiftrate or council, without v./'VXj any great detriment. Such as thofe of claiming all fines and forfeitures for the fupport of perfons in fu- preme power ; the right to all wrecks or valuable goods found when the proprietor is unknown, and to cer- tain forts of mines. The rights or powers of confer- ring dignity or honours, of coining money, of legiti- mating children, of pardoning perfons condemned, or changing the punilhment ; of giving proteffions to debtors, and fuch like. Thefe are generally vefted in the prince in all monarchick governments, and in the fenate, or infome prefident of it, in the ariftocratical; and by them deputed to others. All uicfcn. VIII. Political bodies, whether great or fmall, if riaturai W'nty tlicy arc conftitutcd by a people formerly independent 7iJs/'' ' 'and under no civil fubjeffion, or by thofe who juftly claim independency from any civil power they were formerly fubje6l to, have the civil fupremacy in them- felves ; and are in a ftate of equal right and liberty with refpe6l to all other ftates whether great or fmall. No regard is to be had in this matter to names ; whe- ther the politick body be called a kingdom, an em- pire, a principality, a dukedom, a country, a repub- lick, or free town. If it can exercife juftly all the ef- fential parts of civil power within itfelf, independent- ly of any other perfon or body politick ; and neither of them has any right to refcind or make void its ac- tions ; it has the civil fupremacy how fmall foever its territory be, or the number of its people j and has all the rights of an independent ftate.
The Parts of Civil Power. 239
This independency of flates, and their being dif- Chap. 5. tin6l poUcick bodies from each other, is not obftruc- v./^'XJ ted by any alHances or confederacies whatfoever about;:./ "ejfZed% exercifing jointly any parts of thefupreme power, fuch"'"-^'''''"""* as thofe of peace and war, in leagues offenfive and de- fenfive. Two ftates, notwithftanding fuch treaties, are feparate bodies and independent.
They are then alone deemed politically united,5vAmo//^/f;. when fome one perfon or council is conftituted with a right to exercife fome efTential parts of the fupreme power for both, and to hinder either from exercifing them feparately. If any perfon or council is impower- ed to exercife all thefe efTential powers for both ; they are then one ftate, and an entire coalition is made^ tho' the feveral parts of this ftate may retain their an- tient laws and cuftoms as to all private rights; fince thefe are all authorifed for the feveral parts by the power which is fupreme over the whole. But when only a fmall (hare of the fupreme civil power is vefted in one perfon or council for both, fuch as that of peace and war, or of deciding controverfies between two fubje6i:s of different ftates, while each of the two ftates within itfelfexercifes independently all the otherparts: in this cafe they are called a fyftem of ftates. And in thefe fyftems greater numbers of fmall ftates are fometimes united. Such f3^ftems arifc when the king of one kingdom fucceeds alfo to another, having in both fome parts of the fupreme power which he can exercife alone : or when there is a mutual ao-r cement of feveral ftates toconftitute a common council, fuch as
2^0 The Forms o/'Polity.
Book Ill.was among the Achaian ftates; whence thefe fyftems Vw/^VX-^are called by fome authors Achaick confederacies.
C H A P. VL
The feveral YoK-^is of Polity, ivith their principal
Advantages or Dlf advantages,
I. A CcoRDiNG as thefe efTential parts of civil power
Thrte fimpU AA . i • i r r
forms. ~L x. are committed either to one perion, or to lome council or affembly, there are different forms of po- lity: of which fome are wifely adapted to the intereft of fociety, and are thence to be called regular; others are ill contrived for this purpofe, and are irregular.
When all the parts of the fupreme power are com- mitted to one perfon, 'tis called Monarchy; when they are committed to a council, if the council confiPc of a few perfons of eminence, 'tis called an Ariilocracy; if to an affembly of the people, or of fome deputies chofen by them, it is called a Democracy, and thefe are the three general claffes of fimple forms.
Hcv, matters j^ thofc forms whcrc power is committed to a
ere determined -i^'l J/lJl. U * P
council or council, tis always underltood, where there is no Ipe- '^'^' cial limitation In the conftitution, that the majority of the council have the right of determining all mat- ters propofed. And that that is the will or deed of the council which has the plurality of votes. 'Tis however exceedingly convenient that a certain num- ber or quorum be determined who muft be prefent to make this council the proper reprefentative of die
ly a council n
Several Forms of Civil Polity. 241-
wholc body; otherwife different fmall cabals at diffe- Chap. 6. rent times may make the moft con trary decrees. There ^^•^^'^^''''^' is another limitation highly prudent, that in affairs of great importance more than a bare majority fliould be requilite; fuch as two- thirds, or three-fifths: par- ticularly in altering any of the antient laws, or in con- demning any perfon impeached. Precaution fhould alfo be taken againfl: an obvious fallacy in all quefti- ons or ftates of votes with three members ; in which there may be more votes for one fide of the queition, than for either of the other two; and yet thofe for the other two fides may together be almofl: double the number of that majority. Thus in a council of an hun- dred, there may be thirty-four for one fide and thirty- three for each of the other two, and yet without fome precaution in the conftitution, thirty-four may deter- mine a point againfl: the inclination of fixty-fix. Such queftions may generally be reduced firfl: into a fimple queftion of two parts, and when one of thefe is de- termined it may be fub-divided again into another queftion of two parts if neceflary. In like manner in eleflions to offices, where there are three candidate'^, there fhould always be a vote previous to the decifive one*, to try iirfl: what two of the three candidates have the greateft number of votes ; and he who has the feweft fhould be left out in the deciiive vote to be put between the other two candidates.
11. Each of the three general claffes of forms have ir,,/,,/^,-, ^^ many inferior fpecies with moll important differences.'"'^''''^"'"' '"' Monarchy is eicher abJo!iitc, when the whole admmi- ■«»«•«'.'•
Vol. II. Hh
2A2 Several Fo-Risis of Civil Polity.
Book Tll.ftration is commlcced to the prudence and integrity
^y^VKJofzhe prince, without any other reftridions than thofe
always to be underflood in civil power from the very
end of it : or limited, where by fome original laws in
the very conftitution or conveyance of the power the
quantity of it is determined, and limits fet to it, with-
refervations of certain publick rights of the people
not intruded to him ; and yet no court or council con-
ftituted which does not derive its power from him.
Acrain, Monarchy may be either hereditary or ele&ive;
during life, or for a certain term.
The fpcdcs r,f Ariftocracy, or the power of a fenate, admits like
.-.,vccra<j. ^,^j.j^j.y. jj. jg either abjoliite or limited ; or temporary ^
where the fenators fit only for a certain term in the fe- nate, and then return to a private condition, or^^r- petual Amm.^ life. It may be either hereditary, where the reprefentatives of certain families are fenators ; or eleBive, where either at certain periods the whole fe- nate is chofen, or vacancies fupplied, as they happen, by ele6lion ; and this is done either by "'^ creation or a popular election, or by co-optation of the fenators ; and thcfc in many different ways. Sometimes a certain fortune, or the pofrefTing certain lands entitles to a feat in thefupreme council; f and this Ariftotle calls an Oligarchy. riimiKmcuiof Democracies too are of very different kinds. Some- times all the free men of the ftate with equal right of
* Tiufe are the terms iifcd by the Romans, creation for popular cleilion, and cc- eftatkris for cledion to an office by the colltigues in thu ofTicc. f Ti:i3 Aridothard I'lato (.all a Tunocracy, or Olg-itchy.
Several "FoKisis of Civil Polity. 245
fufFrage make the fupreme afTembly. Sometimes a Chap. 6. few deputies are chofcn annually, or at certain peri- ^^^'^'^^ ods, either by a whole people at once; or each of the feveral fmall diftricls into which a people is divided have a right of returning a certain number of depu- ties to the affembly. Sometimes a certain fortune or eftate is requifite to entitle to a vote in the affem- bly, or to a vote in chufing deputies or reprefenta- tives. Sometimes a part chofenbylot conftitutes the fupreme affembly: fometimes where all have votes yet their votes are not of equal effe6l, but * being divided into certain claffes, and thefe fub-divided into centu- ries, or fmaller claffes, not according to their num- bers, but rather their wealth, matters are determined not by plurality of fmgle votes, but by the plurality of concurring centuries ; tho' in one century there be far greater numbers than in others. Thefe are the principal models of the fimple forms.
The complex forms are innumerable according as ^^"'^'"/"^'"* Monarchy of any of the above-mentioned kinds is combined with fome of the feveral forts of Ariftocra- cies, or Democracies, or with both. And further diver- fities may arife according as the feveral effential parts of fupreme power are entrufted differently with the prince, the fenate, or the popular affembly. And thus the variety is endlefs, as one may fee in Ariftotle's po- liticks and Harrington.
III. To enable one to compare the feveral forms, ,^^^^'' "'f J^^] and judge of the moil convenient; we ihali premife"-
.'.V.'Wi.
* The Comitia Centuriata oiServius Tullim,
H h 2
2AA Several Forms o/Civil Polity.
Book ITT. fome general maxims of greac Importance, and then v^^^r'X^make fome fpecial remarks upon the conveniencies
and inconvenicncies of thefeveral fimpler forms which
muft be parts in every complex one. Fourgranj,^- j ^ '^jg obvIous that when by any plan of polity
vaiitngti t(i t- 11*1 • 1^1 ' \' r
jicurtd. tliefe four advantages can be obtamed, ivijdoni m dii- cernino- the litteft meafures for the general intereft; fidelity, with expedition :ind/ecrecy in the determina- tion and execution of them, and concord or unity ; a nation muft have all that happinefs which any plan of polity can give it; as fufficient wifdom in the gover- nors will difcover the moft eifeclual means, 2ixA fide- lity will chufe them, by expedition and fecrecy they will be moft efFe6lually executed, and unity will pre- vent one of the greateft evils, civil wars and feditions. The o-reat necellity of taking fufficient precaution a- o-alnft thefe mifchiefs of factions and civil war leads moft writers in politicks into another obvious maximj, viz. Tiv ^•r/5c/ 2. That the feveral parts of fupreme power if
/LTrf«jI-^'they are lodged by any complex plan in different fub- je6ts, fome granted to a prince, others to a fcnatc, and others to a popular nlTembly, there muft in fach cafe be fome nexus imperii, or fome political bond upon them, that they may not be able or incline to act feparately and in oppofition to each other. With- out this, two fupreme powers may be conftituted in the fame ftate, which may give frequent occafions to civil wars. I'his would be the cafe if at once both the fenatc and popular affrmbly claimed the legiilativc
Several YoK^is of Civil Polity. 245
power; as ic happened in Rome after the tribunes held" Chap. 6. aflemblies of the plebeians without authority of theV-^VX^ fenate, and obtained that the decree of the plebeians Ihould have the force of laws, while the fenate infi- fted upon the like force to their decrees. The like was the cafe in many nations of Europe, while the ecclefia- ftick ftate pretended to make obligatory laws, and exer- cife certain jurifdictions, independently of the civil. If therefore the feveral effential parts of fupreme power are diftributed among diiferent perfons or courts, they muft have fome ftrong bond of union. If a prince has the executive, and the power of peace and war, while another body has the legiflative, the power of raifmo- tributes muft be at leaft neceflarily fhared with the legiflative council, that it may never be the prince's intereft to make war without their concurrence: and the prince m.uft have a fhare in the legiflative. With- out fuch bonds laws might be enacted vrhichthe prince vv'ould not execute, or wars entered into which the nation would not fupport.
But there is no fuch necefTity that all the parts of . ^'' '-'''J^^y the fupreme power fliould be committed either to one^^^irt^s^cpir. perion or one council. Unity may be preierved other-n/. ways. And other interefts of the ftate may require that they fliould be divided.
?. Another maxim is equally certain from reafon P'-'P^v ''■'
I 1 . r W • '-r-ti '''^ bcttsm for
and the experience or all nations, " I hat property/ch.,7;.ow>v '^ and that chiefly in lands, is the natural foundation ' ^"-^^""''''''^' '• upon which power muft reft; tho' it gives not any *• juft right to power." W here there is property there
2a6 Several Forms of Civil VoLiTY. .
Book iil.numbers of men can be fupported, and the ir rfTijflanc O^V""^^ obtained as they can be rewarded for it: and where they cannot be fupported and rewarded, their afTif- tance is not to be expeded. When power wants this foundation, the ftate mufl: always be reftlefs, fluduat- ing, and full of fedition, until either the power draws property to itfelf, or property obtains power. Men who have property, and can therefore obtain force, will not be excluded from fome fhare of power. And men in power will exert it one way or other in obtaining property to fupport themfelves ; which muft occafion convulfions in a flatc. Pure Monarchy will never con- tinue long without crown-lands, or hereditary provin- ces, wdiere the lands are either the property of the prince, or he has a power over them equivalent to pro- perty. 'Tis true, that to fupport Monarchy, or the power of a few, it is not neceffary that the monarch or the cabal fhould have near one half of the proper- ty. A much fmaller fhare will be fufficient where the counfels are united as they are under a prince or a ca- bal of a few; and may be an over-match for double or treble the property difperfed among fuch multitudes as feldom can unite in their defigns, or in the mea- fures fubfervient to them. But ftill the maxim holds, that without a large fhare of property fuch power can- not be flable. -. ^r.j!ccr.ry. Au hcrcdltary Ariftocracy in like manner fliall be expofed to conflant feditions and fluduation, unlefs a very large fliare of the lands are the property of the ienators. As the fenators themfelves are often of dif-
In Dcnioera-
Several Forms of Civil PolitT. 247
ferent fentiments anddefigns, there is not fuch unky Chap. 6. of council as in Monarchy ; and therefore a larger fliare of property in their hands is neceffary for the ftability of that form, than is neceffary to be in the monarch for the ilability of the Monarchy. If they have not near an half of the property, there may be an intereft and a force fufficient to controul them, and change the form of polity.
A Democracy cannot remain ftable iinlefs the pro-,, perty be fo diffufed among the people that no fuch ca- bal of a few as could probably unite in any defign, fhall have a fimd of wealth fufficient to fupport a force fuperior to that of the reft. And in the feveral com- plex forms of polity there muft fome fuitable divifion of property be obferved, otherways they fhall always be inftablc and full of fedition ; when power has its natural foundation of property it will be lafting, but may, in fome forms, be very pernicious and opprefTive to the whole body of the people ; and it muft be the more pernicious that it will be very permanent, there being no fufficient force to overturn or controul it. And this ftiews the great care requifite in fetthng a juft plan, and a fuitable divifion of property, and in taking precautions againft any fuch change in proper- ty as may deftroy a good plan: this fliould be the view of Agrarian laws.
4. As 'tis manifeft that in Democracies, and in all ^ D.nr^crath Democratick affemblies truly chofen by the people, iZnpii'.'' ' and united in intereft with them, there muft ever be a faithful intention of the general intereft, which is the
2a8 The feveral Plans ^Polity.
Book III intcreft of the whole affembly ; no conftitucion can be v.,^V^^ o-ood where fome of the moil important parts of the civil power are not committed in w^hole or in part to fuch an afTembly, which ever muft be faithful to that intereft for which all civil polity is deflined. And con- fequently when the fituation of the people, their man- ners and cuftoms, their trade or arts, do not fuffi- cicntly of thcmfelves caufe fuch a diffufion of pro- perty among many as is requifite for the continuance of the Democratick part in the conftitution ; there fliould be fuch Agrarian laws as will prevent any im- moderate increafe of wealth in the hands of a few, w hich could fupport a force fuperior to the whole bo- dy. 'Tis in vain to talk of invading the liberty of the rich, or the injury of flopping their progrefs in jufl acquifitions. No publick intereft hinders their acqui- ring as much as is requifite for any innocent enjoy- ments and pleafures of life. And yet if it did, the li- berty and fafety of thoufands or millions is never to be put in the ballance with even the innocent plea- fures of a few families ; much lefs with their vain am- bition, or their unjuft pleafures, from their ufurped powers or external pomp and grandeur. xo oppnjfne For the fame reafon, all thofe groundlefs partition- teaiioLjion„y^y^ns amoug citizcns, connnmg places or power and orArs of men. pj-Qfjj- |-q ccrtaiu famiUcs or certain orders, ought to be prevented or broke down ; as they are both the oc- cafions of immoderate and dangerous wealth in thefe orders; and give the jufteft caufes of indignation, re- fentment, and fetting up of a feparate intereft:, to all
The feveralVLK^t^s, of Volity, 2aq
chofe who are thus unjuftly excluded. Thus we fee CfiAr. 6. that Rome was never at reft till the brave and popu- v./^/^V/ lar among the plebeians obtained accefs to the higheft offices in the ftate, contrary to their old unreafonable laws. The general good of all is the end of aflbciat- ing, and not the grandeur of a few. If certain orders muft reap all advantages, they fhould make a ftate by themfelves, without other orders united with them.
5. Tho' 'tis not pofTible to fix upon any one num- ^^^ """'!'"' ber of perfons or families as the very beft for a poli- "'' ^"' '''''■" tical union, yet we may fee plain reafons why certain numbers are too fmall, and others too great. For it 5,,,, ,,, ,,,,j. is plain on one hand, firft, that the greater the num- bers united are, the greater muft be the danger that the vigilance of magiftrates ftiall not extend to them all for protedlion and improvement of their conditi- on ; and that many arifing diforders ftiall not be reme- died. And then the tumults and convulfions of fuch great bodies ftiall be more terrible and calamitous, as greater multitudes are involved in them.
Again, 2. The greater the multitudes are which thus unite into one ftate, the number of ftates into which mankind are cantoned muft be fo much the fewer, and confequently a fmaller number of mankind can arife to eminence, or have opportunities of ex- erting their abilities and political virtues, or of im- proving them for the benefit of mankind. In fome vaft ftates confifting of many millions, there is but a fmall number who are admitted to the fupreme coun- cils, or have any confiderable ftiare in the adminiftrati-
VoL.IL li
2CO Tie feveral P h Ai^ s of Volity.
Book IILon. The reft are either wholly excluded^ or have no L/VXJ other ftiare than blindly obeying the orders of their fu- periors. If the fame multitude had been divided into many.fmaller ftates, there had been room for many men of finer genius and capacity, to exert their abi- lities, and improve them by exercife in the fervice of mankind ; whether by forming men to virtue, cultiva- ting in them all focial difpofitions, and training them in publick offices civil or military ; or in improving the ingenious arts. Accordingly we find that all vir- tues and inofenious arts flouriflied more in the little ftates of Greece than in any of the great empires. L:'-:rM:^nKai:. g^- Qn thc othcr hand, i. The numbers muft be fo great as to be eafily fuperior in force to any fuch bands of the manifeftly and avowedly unjuft as may probably unite together. In ftate-fadions, upon fome fpecious tho' falfe views of right, vaft numbers may unite, efpecially in the greater ftates: this fliould be prevented by a proper plan of polity. But feldom do thoufands of robbers or pirates unite for avowed- ly unjuft depredations, and yet a thoufand families would fcarce be fufficient to refift fuch bands of rob- bers as might be apprehended.
Again, 2. There are many grand and ufeful defigns of great and lafting advantages in life, which require both great wealth and a great number of hands. Such as clearing forefts, draining marfhes, maintaining fo- reign commerce, making harbours, fortifying cities, cultivating manufactures and ingenious arts, and en- couraging the artizans.
The feveralVhA^t^^ ofPoLirr. 2ri
But 3. Whatever numbers might have fufficed for Chap. 6. the full improvement of human life, before any great Hates had arifen in their neighbourhood, and been therefore large enough for forming little ftates; yet after a great empire is formed, much larger numbers are requifite in the ftates around it, and it immedi- ately becomes advifable for many fmall ftates to unite in a large one; or to form fome ftrongly united fyf- tem, that they may be able to refift the over-grown empire. This is feldom done fuccefsfully by common leagues or alliances; little jarrs and fufpicions may. make their alliance of httle efFed. And feldom do they all exert themfelves as vigoroufly as they would do after an entire coalition, or after fome fyftem formed fo ftrongly as to come near to a compleat coalition. 6. As fome extraordinary dangers in natural liber ty may juftify fome extraordinary meafures; and as''^'^'//'''-^"''''''' in civil fociety it may be perfectly juft to fet limits even to fuch acquifitions as are not to be made inju- rioufly, but may hereafter prove dangerous to the community; fince a more extenfive intereft of man- kind Is always to limit and controul the lefs extenfive: it may in like manner be perfedlly juft in neighbour- ing ftates to put an early check to any dangerous power arifing. If they fee any ftate artfully modelled for conqueft or for oppreffing their neighbours, and keeping a-foot fuch military difcipline and force as they cannot be fecured againft, confiftently with the allowing their people to follow their honeft and in- . nocent occupations; or without vaft expences; they
li 2
ExtrMid'tUiirv
fifct/.
2 r 2 The Comparisons offeveral Plans.
Book Tllhave * juft right to free themfelves from thefe dan- ^-/^^v^'^^gers at once before they grow too great, by breaking the power of that ambitious neighbour, or by obtain- ino-fuchfecurity as fhall be fufficient for their fafety, fuch as the furrendry of fortified places, or the demo- lilliino- them : or any other fecurity the leafl: opprefTive that I'ball prove efFe6lual for their fafety. T: poiuypcuu 7. We laiHy obferve once for all, that in contriving prevent nbufii of ^^ ^j^^^ polity no accouut is to be made of what good \Zdl. jnen in power would do in any plan: good and wife
,^ien inverted with power in any plan would promote effeclually the general happinefs. The grand point is '' to prevent mifchief to the ftate, or its members, •• even when power comes into bad hands," as no hu- man wifdom can fee into an hypocritical or change- able heart ; and in all plans bad men may come into power. But there may be fuch contrivances in the po- lity as may reftrain their evil intentions, as may re- move temptations to abufe their power; or at leaft may take away all hopes of fuccefs, and of finding their intereft in abufmg it. ■The pfruiiar J y^ \^ ^ procced to thc more fpecial remarks upon
eJvantagt'S and i ^ -L ■•■
■'y>gtr, «//ictbe peculiar advantages and difadvantages of the fe- »' I'Jii;<rMc-veral fimplcr forms. And firft. Monarchy almoft of ''''"'^^' every kind has thefe advantages that it naturally pro- motes unity, and can execute its defigns with expe- dition ^nd fee recy. Rebellions may arife againll: any forts of governors; but, as the whole power in Mo- narchy is committed to one; there is no door open-
* Thus i!k Civil Law allows the ai^io danuii Infcdi before damages are fuftalned.
The Comparison offeveralVLAt;s,\ 25^
ed in the very plan to fediclon. And one perfon al- Chat. 6. ways prefent to exert his power may do it with more '^-'^"'^'''"^^^ expedition, as well as fecrecy, than any council of ma- ny. In elective Monarchies, if the plan of election be tolerable, there is pretty good fecurity for ivifdom in the governor. But by this plan there is no fecurity for fidelity ; and very little for unity. As the crown does not defcend to the pofterity of the elective mo- narch, he will ever be attempting to alter the confli- tution ; or if he defpairs of fuccefs in this defign, his next will be to * enrich and ao-o-randize his own fami- ly, by all manner of exactions from his fubjeds. And tho' concord may be preferved during his life, on every new election there muft be great danger of a civil war.
In hereditary Monarchies there may be lefs didiVi^ n.r^rttanMo. gers of civil war, and more fecurity for fidelity; as ''''""'' the grandeur of the prince's family depends on the profperity of his country. But this is often over-look- ed by imprudent princes, who may take the moft op- pofite meafures, by giving themfelves up to luxury and pleafure, or amaifing v/ealth ; breaking the fpirits and ruining the fortunes of their fubjects, and oppref- fmg all eminent virtue and love of freedom as dan- gerous to themfelves and their famiHes. Thus the fe- curity for fidelity is but fmall, and there is none at all for wifdom or political abilities in men educated from their infancy in that elevation of fortune, where a conftant deference is paid them inconfiftent with all
* This has been the conftant conduct of that Monarchy abfurdly called fpiritualt, tlse Popedom.
Ltmltc.l Mo.
2 cA . The Comparison offeveral Plans.
BooKlII.candid advifmg or reproving, all exprefTing of diflikc ac what is wrong in them; no wonder that uncon- troullcd palHons arife, that fuch ungoverned minds lofe all equitable difpoiitions toward their fellow-crea- tures, for whofe interefl: they are intruded with thefe powers; and grow incapable of felf-government, or of any vio-orous application either to the publick inte- rclb or their own. Such perfons muft generally be made a prey or a property to fawning and artful fy- cophants.
Could wifdom and fidelity be infured, no form
«<:rXl'Mrfr\yould bc prcferablc to abfolute hereditary Monarchy.
than oifAutc. ^^^ ^^^^^ ^^^ ^^ ^^ ^^^j^ fccurlty in any hereditary
office. In Monarchies only limited by laws without any council fharing with the prince in any parts of the fupreme power, there are pretty much the fame dangers, both of imprudence and feparate interefl: of the monarch. But the right of refiflance will be more manifefl: to the whole people ; and there will readily be a more general concurrence of the people to pre- fervc their rights by jufl: violence, whenever the prince invades any of thcfe that are exprelly referved by fun- damental laws, than where there are no fuch limita- tions. In this form indeed there is a door open to perpetual ftruggles; as the prince will always be at- tempting to enlarge his powers, and the people watch-
ing againft it.
/,2T« °aZ V. In Ariftocracies where the whole power Is lod- pcracics, but ^ j couucil of mcn of eminent fl:adons or for-
not unity, or ex- ^
pcdition.orfiic-^^^^^^^ onc may fome times expect fufficient wifdom
T)^^ Comparison of fever alVhA^t^s, 255
and political abilities to difcern and accomplifh what- Chap. 6. ever the intereft of the ftate may require. But there ^^''"^'^'^^ is no fecurity againft feditions and civil wars. Nor can this form fecure fidelity to the publick intereft, or admit of fecrecy and expedition. The views of a cor- rupt fenate will be aggrandizing themfelves and their families by all opprefTion of the people. In heredita- ry fenates thefe evils are moft to be feared, and the majority of fuch bodies may fometimes want even po- litical wifdom. Among men born in high ftations of wealth and power; ambition, vanity, infolence, and an unfociable contempt of the lower orders, as if they were not of the fame fpecies, or were not fellow-citi- zens with them, too frequently prevail. And thefe high ftations afford many occafions of corruption, by floth, luxury, and debauchery. An unmixed heredi- tary Ariftocracy muft be among the very worft forms, Cnce It neither fecures wifdom, fidelity, unity, nor fecrecy.
In a council of fenators eledled for life by the people rhcdcBivean or by any popular intereft, there is better fecurity' ' ' both for wifdom and fidelity. The people, tho' not the beft judges of abilities, yet follow at leaft the character for wifdom, which wife men generally ob- tain. And fuch fenators muft be excited to fidelity, both by gratitude to their electors, and by their de- fire of popularity, and influence in any future elecfli- ons, that they may carry them for their friends. But there is no fecurity againft difcord and fedition in fuch a council. And ambitious views of enlarging their
256 77;^ Comparison of fever alVhAi^s,
Book in.wealth may make the fenators unfaithful to the popu- lar interefts.
When new members are admitted by co-optation, the fenate may turn into a dangerous cabal, without any of the advantages defirable in civil polity, and at- tempt to make their office hereditary. But when fena- tors are elected by the people, and continue in office only for a fhort term, after which they return to the flimc condition in point of right with the populace, fuch a fenate is more properly called a popular aflem- bly, and the polity is a Democracy. In this form fi- dehcy and wifdom are abundantly fecured: but it lies open to feditions, and cannot be fpeedy or fecrct in the execution of its defigns. This model can only be called Ariftocratick when the people are confined to eled the fenators out of certain eminent families; and even fo it is not one of the fimple forms, fince the creation of magiftrates, one of the efTential parts of fupreme power, is lodged with the people.
This limitation however of a people in their elec- tions to certain orders, or to fome eminent families, will always raife two grand fadions with feparate in- terefts. The wife, and brave, and ambitious among the plebeians will ever be making ftrong efforts to break down this partition and obtain accefs to the fenate, and feditions canfcarcely be prevented.-^
j- Moft of thefe remarks upon Arifto.cra- cies one fees confirmed by the whole firll Decad of Livy, which Machiavel juft- Jy chofe as die fund of his political obfer- Vdtions. AVhcn fenators are entitled to be ilcctcd by a certain degree of wealth, Ari-
flotle calls the form Oligarchy, and gives a long detail of its dangers, 1. iii. c. j. andl. iv. c. 2. AVhen they are chofen up- on fome fame for virtue, he calls it the proper Ariftocracy, as do others of the an- tients.
The Comparison offeveralVhA-t^s, 257
VL In all forms of Democracy one may be fure Chap. 6. of fidelity. The popular afTemblies always defire tliQ^^f^'^ good or the whole as it is their own. But where the "•'"'"■"/•'' ■-'^'•■ whole power is lodged in fuch afTemblies, without SLnyoL- rcj^^s'' check or controU by a prince or fenate, there is no fe- curity for wifdom, unity, or fecrecy. This is obvious where all the free men meet in the aflfembly, there is no hope of wifdom, no avoiding feditions, no liabi- lity of councils. Sufpicion and envy can be raifed, by artful felfifh demagogues, againfl: all virtue and emi- nence, even where there is the greatefl need for them. Their refolutions are fometimes extravagantly bold ; and again, when a pannick is raifed, abjecftly time- roue.
When the pow^r is committed to a numerous af- ^ "'"'"^ 'f lembly ot popular deputies or repreientatives for a/'/.-'i <».- lei fhort term; equal fidelity may be expected, if they are^'"" fairly ele6led by a popular intereft, and much more wifdom and ftability : and yet there is no fecurity here againft faction and fedition; and, as the humours of a people change at the different eleclions, there may be too much inflability. .
Eleffino; by the lot as it excludes all bri-^uinp- and TieAeji form bribery, fo it excludes all prudence in the choice, and '""" all regard to merit: unlefs there be firfl a leet, or fmall number of candidates for each office, chofen by fuffrage, and then one of this number determined by lot ; conftituting the fupreme afTcmbly fo that mat- ters are determined by plurality of centuries and not of fmgle fuffrages, may cafl the power much into the Vol. II, K k
2^8 The Comparison of fever alVhK^^.
BooKlTI.liands of men of fuperlor f ftations and knowledge, ^^/^W^biic gives no fecurity againft fedicions. .v,y7,,;,v f.rm, VII. FroHi tlicfe iTafonings it appears that none of ^-' thcfe fimple forms can be fafe for a fociety. If thefe dcferve to be called the regular forms which are wifely adapted to the true end of civil polity, all the fimple forms are to be called rather rude and imperfc(5t. Complex forms made up of all the three will be found the beil: and moft regular according to the general do6lrine both of J antients and moderns. 'Tis little to the honour of any form, and of little confequence to (hewing it to be a jufl or prudent, or facred and ve- nerable one, that it was the antienteft, or prevailed in die earlieft aQ-es. There is no human contrivance that we could Icfs expe6l to be brought to. perfe6tion at firft, or in a fhort time and upon little experience, than that of civil polity; as the fettling it well muft require the greateft wifdom and experience. The ar- gument of antiquity would recommend to us to re- turn again to dens, and caves, and beafts skins, and accorns, or wild fruits of the earth, inftead of our pre- fent houfcs, food and cloathing. A rude artlefs plan might fucceed well in earlier days while more of the earlier fimphcicy and innocence of manners was pre- ferved. But, when luxury and corruption of manners
f This form Arifiotle calls a Timo- vine and fupeiior to a!l others in pcrfonsl
trrcv.
X This is phlu in Ariflotlc tho' hepre- T-rs a certain fort of pure a'^folute Monar-
virtnes. Zcno was of the fame opinion. S)tt Leert in Zemne. So Pohl/ius, Hifl, />. 628 and 638, Dionyf Halicar. Antifj,
cliy, which only exiits in t!ie fpeeches of j /. ii. Cicero apad Non. MarcA. d: ->;€rb. Haiterers, where ihj king is foraeway di- | prop. 4. 292 Tacit. Ann. 4. 33.
The heJiVhAt^S. 259
crept in, men would foon find the neceflity of more Chap. 6. artful polities. V>^W/
Of the complex or mixed forms there is an end-/'".?/'-^/^'"*^ leis variety, according as the ieveral parts of fupreme power may be differently lodged in the Monarchick, Ariftocratick, or Democratick bodies of the feveral fpecies above-mentioned. Many of thefe varieties are confidered in the fourth, fifth, and fixth books of A- riftotle, and in Harrington, with the natural caufes and occafions of changes and of ruin. We fliall only fuggeft fome general remarks upon the propereft man- ner of combining thefe feveral fimpler forms into a complex one.
VIII. To prefeiTC the Democratick part, we ob- rh v:\fcfifmi ferved above the ufe of fome agrarian law, or fome'^/ttVlt.'''* contrivance that would prevent any dangerous degree of wealth coming into the hands of a few. No pre- cife fum can be fixed as the higheft. Different ftates may admit of different degrees of wealth without dano;er. If the aQ-rarian law limits men to too fmall fortunes ; it difcourages the induftry of the more able hands in trade or manufa6tures. If it allows too much wealth, fome cabalpf potent families may enflave the reft. Without any fuch laws fome mixed ftates are fafe, provided the lords can fell their eftates, and trade and manufadlures flourifti among the plebeians ; and they have accefs to the places of greateft profit and power. By thefe means, without any law, wealth may be fufficiently diffufed.
2, 'Ti§ of great advantage in every form that th.^ j s^a ym^^n-
K k 2 '''
Book ni.common farmers or husband-men have good tenures ;
\y^^r\JxiOt fuch as fliall maintain them in floth or afford fer- vants to do all labour for them; but yet fuch as will yield a plentiful fupport to the laborious and induf- trious; that they may live happy, and have ftrength of body and mind for defence of themfelves and their country againft domeilick tyrants or foreign inva- ders.
2. The fafefl: popular affembly in a mixed form is
UmUj of dcpu. ^2it of deputies or reprelentatives proportionally and fairly eleded for a certain term. In fuch affemblies the number of deputies from the feveral diftri6ls fhould be proportioned to the number of people and their wealth in the feveral dif1:ri(5ls. A conftant door to cor- ruption mud: be open if fmall or poor diftrids and cities have reprefentatives quite beyond the proporti- on of their wealth to the reft, and of the ihare they bear in the publick burdens ; befides it is a manifeft iniquity to the greater diftrids. And the manner of cledion fliould be fuch as excludes bribery and cor- ruption, otherways they are not true reprefentatives of their diftrids. In fuch an affembly there muft be undoubted fidelity, and therefore the largeft fhare of the legiilativc power fhould be committed to them. If fuch affemblies are lefs fit for deliberating, debat- ing, concerting, and propofing laws, they fliould have the chief power of ena61ing; as they will never incline to ena6l what they do not judge ufeful to the whole body, fince whatever is opprcfhve or hurtful to the people muft be fo to thcmfelvcs-
The heft Plans. 261
4. To prevent feditions in the popular aflcmbly and Chap. 6, theinftabilityof its councils and meafures/tis eeneral- ^-O^*^^ ly convenient that there be a lenate of a few ; which, be- ^#^-y ^''* '^^ ing elected by the people or by a popular intereft, uponS'««"^S- charader for eminent abilities,- fhould have the whole^Sw^'I" right of deliberating, concerting, and pr opofing laws J^l"/ ""^'^* or decrees to the popular affembly : and fliould con- tinue only for a limited term, changing by rotation, and not all at once; a fenate thus conftituted might ikfely be entrufted alfo with the higheft jurifdiclion, or judging of all caufes in the laft refort, and with the creation and eledion of magiftrates and officers civil ^nd military, at leaft they fhould have a large fliare in fuch creations. There would be little caufe to ap- prehend their having any views oppofite to the popu* lar intereft \ fince after a few years they and their fami- lies fliall be in the fame condition with the populace in point of right : and all their hopes of re-ekdion af- ter the limited periods, muft depend on their good chara6ler. with the people. Such a fenate would be the beft judges of the abilities of men for important offices.
5. In all fenates, councils, or aflemblies to be elec^ a roiathn oij. ted for a certain term, a rotation is of great ufe, h-^TSl'^Z^/off. which a third or fourth part only goes out at one time "'' and their places then are fupplied. Suppofe this hap- pens annually, or every fecond year, a majority ftill remains of old members, fuch as are well acquainted with the reafons of all meafures formerly concerted, and are enured to publick bufinefs ; and yet dangerous
2($2 The beJiVhA-t^s.
Book in.cabals may be prevented or broken; and new able cha- V./VXJ raclers are brought to light, and find opportunities of exerting their abilities in the publick fervice: and the flate gets more hands whom it can truft in any im- portant affairs civil or military; nor is it diftreffed by the death or treachery of thofe formerly employed ; nor is there fuch envy and difguft raifed by this me- thod in the body of the people, or in the greater fa- milies, as when a fmall cabal of men engrofs for a long time all the offices of profit and power. Not to men- tion the dangers to be apprehended to any free flate from the long continued power of a few, which be-
Q-ets in them infolence, and fuch ambitious views as
• 1
they never would have entertained bad the term of
their power been limited by law. Ma^jiratci 6. Thc Hkc rcafons fhew the advantages of making f^ouidhavefi^c ^11 magiftracies annual, or, if that term be too fhort for fome great defigns, of limiting them at leaft to a certain fmall number of years. This regulation may ' fome times deprive the flate of the fervices of fome men of Angularly great abilities, and yet not general- ly. Thofe who go out of office by a fixed law are not affronted; their fucceflbrs may often obtain their coun- cil and afiiftance. And where fuch laws have obtained for any confiderable time, there will be confiderable numbers of men of diftinguifhed abilities and expe- rience for the feveral offices civil or military. The hopes of the flate need not depend on one alone; there would be no diflrefs by the death of one. And each magiflrate would be more zealous to do publick fer-
The hejl Plans. 26?-
vices in his turn, that he may obtain honour and po- Chap. 6. pularity, and thus fecure his re-eleclion as fooa as thev./^VXJ laws permit. Longer military command may be more fuccefsful in the ambitious views of conquering. But fuch defigns feldom increafe the happinefs of the vic- torious ftate; and they create a great deal of unmeri- ted mifery to others; all fuch views are wicked and. unj uft.
7. To prevent feditions in either of thefe aflem- , , ..
' ■"• , , ^ A regal or I'iC-'
blies, and their contentions with each other, and all ^^ '»'-''"' z^^'^- attempts to alter the conftitution by the one's invad- ing the right of the other, there fhould be a monar- chick or di6latorial power conftituted as an umpire between them ; by which too the execution of all de- figns may be made more expeditious and fecret where it is requifite. This power may be committed either hereditarily to fome family, yet without other foun- dation of wealth than what depends on the law, or the grants of the popular affembly, or to a fmall num- ber or council of a few elected for a certain term by the fenate, and fitting continually, fa as to be always ready to exert the force of the ftate for its defence againfl: fudden dangers; changing by rotation, and each one of them accountable, after his power expires, to the fenate or popular affembly for any fieps taken during their adminiftration. Such a prince, or dic- tatorial council, may fafely enjoy the executive power, and a fhare alfo with the fenate in the promoting to offices.
hUct.
The heft Plans.
8. The ballot *, well contrived, prevents all compe* ticion or undue influence on the fufirages, whether
The ufi qf th/in elections, or in the determinations about afl:airs pro- pofed in the fenate or popular aflembly, or in judica- ture. By the ballot men can vote as they pleafe, with- out incurring the refentments of the powerful, or a ^popular odium, or the anger of their party. The cor- rupter may lofe his bribe, and yet gain no vote by it. At the fame time 'tis plain the ballot takes away all fliame, and gives free fcope to private pique and malice, and envy. But thcfe pallions can feldorn in- fluence any great numbers of a large aflimbly againfl: any one pcrfon, unlefs he has given juft occafion for them. Thefe inconveniencies therefore are far from equalling thofe which may attend other ways of vot- ing in a free nation. The worfl: efFecl of the ballot is the forcing fometimes fome great and good men to leave their country for a few years when the people are fufpicious of their power.
g. The members of the popular alTembly fhould
5'^^"«'""''/'"-have f full previous information of matters to come pu!ar"de^uf:cs. bcforc thcm, wlth the reafons on both fides, and not be firft informed by tedious altercation when they are aflembled. There may be opportunities for all who incline to inform thofe concerned of the reafons ur-
Prev'tous op-
F for
* The mod prudent method in eleiHi- ons by the people is that by both l^af/ot An^f^nUiny, as explained by Harrington, and pracflifcd in Venice and fome other Hates. The Leges Tahcllanae in Rome are
well known, f A law concerted by the fenate was intimated to all by ihe promul- gatio pertrifiiaidiniwi, and men could pro- mote or oppofe the law by Ipeeches from the Rajlra.
The hefiVhA-t^s, 265
ged on both fides, while men are cooler than they can Chap. 6. be expe6led to be in the midfl: of keen debates intheV-/"V^w very aflembly.
I o. In every ftate a cenforial power is of great con- ^ '"f "'' fequence: that by it the manners of a people may be regulated, and that luxury, voluptuous debauchery, and other private vices prevented or made infamous, which otherways would deftroy all publick virtues, and all faithful regard to the general good, and lead men to ruin the beft contrived polity. Of this more hereafter. 'Tis in vain that princes or fenates com- plain of corrupt manners. Their complaints muft raife juft indignation againft themfelves, while the higheft dignities, the greateft offices civil and mihta- ry are promifcuoully conferred by them on perfons of the mofl: profligate chara6lers as readily as upon the mofl virtuous. In vain they expe6l an inward reverence to their perfons or authority, while the perfons near- eft to them, and promoted by them, employ the power and wealth conferred on them chiefly upon indulging themfelves in all debauchery and infamous vices with impunity, or in a felfilh aggrandizing themfelves and their families.
Thecenfors fhould be created by the fcnace with full power of degrading from all honours and offices men of infamous lives and of difTolute conduct. They ihould have power alfo of infli6ling fome more fever e punifhments. This truft is perhaps more fafe in the hands of a cenforial council for a fet term chaneed by rotation, than in thofe of any one perfon.
Vol. II. L I
The Rights ^Governors*
From a due confideration of thefe points the more convenient models of civil polity may be found, a- midft that great variety of complex ones which may oc(!ur to us. The moft fuitable conftitutional laws to each are at large confidered by Ariftotle and Har-
rmgton.
CHAP. VII.
The Rights (9/"Governors-; hoi}) far they extend.
^TZ^IX npHE rights of the fupreme governors are fuch ' '• A as are veiled in them by the conftitution, as
far as the rights of fubjedls are naturally alienable, and in fa6l alienated, by any juft deed of theirs, againft which there lyes no juft exception. And firft, fuch as are invefted with the fupreme power, 'tis plain, are not accountable to any perfon or court upon earth as a civil fuperior; to fuppofe it would be a contradic- tion. Kcithefawiin gyt wc muft not thcuce conclude that the fame quantity of power, even abfolute and unlimited, is in every plan of polity committed either to fome poli- tical perfon, or council, or both jointly, as there can be in any other plan. The whole body of a people in any country, did they rcaffemble again, and refolve to enlarge the powers of the rulers to the utmoft, may convey as much power to them as any rulers elfe- where can juftly enjoy. But in fome ftates unlimited power is already conveyed to a prince^ or to a fenate, or
The Rights ©/"Governors. 267
to an affembly, or to all thefe together; whereas in 0- Chap. 6. ther ftates certain rights in the very conftitution are ^^-''^^^'^ ' referved to the people, which neither any prince, nor any political council, nor both jointly, have any rio-ht to invade. Such are the fundamental laws in many ftates, fettling the very legiflative power in fome coun- cils along with the prince, and both jointly cannot alter them. No deed of fuch a council can empower the king to make laws by himfelf or to levy tributes. Any fuch tranfadion of a council or popular aflembly with the prince would of itfelf be void, as exceeded all the powers vefted in them. In fome called abfo- lute and hereditary monarchies, the prince never claims the right of altering the order of fuccefTion, or of alienating any part of his territory, without con- fent of the whole body, or of transferring the king- dom to another.
The fame thinp; is more manifeft in the coalition . '^'f """''-^
, c) . z« the coalitioK
of two independent ftates into one ; where each has 'f independent referved certain rights, and exempted them from the ' ^ cognifance of any perfon or political council confti- tuted in this coalition, for the governing of the whole. No doubt in cafes of great necefTity the governors of any ftate may juftly take fome extraordinary fteps be- yond thefe limits fet to them; and they may fome- times without necefTity a(5l treacheroufly againft the conditions upon which their power was fettled; and in thefe cafes there may be no formal appointment of any method of redrefs. But the difficulty of ob- taining rcdrefs does not prove that they had any right
LI 2
2^8 The Rights (^/Governors.
Book HI. ^o take fuch unneceffary fteps. And governors, where L/'V^^ there are no fuch hmications, may alter all old laws or articles of agreement for any fuperlor expediency even without any plea of necelFity, as that power is committed to them; whereas, where there are funda- mental laws referving certain rights as unalterable, no- thing but a manifeft necelhty can juftify any fleps be- yond the hmits of thefe laws; otherways all faith in fuch treaties of coaUtion is gone.
The cafe is the fame as in contrads of private part- nerfhip with fome exprefs refervations. An extreme neceillty may juftify the breaking thefe refervations; and yet no man fays a partner has as much power without confent of the reft, when he is bound by ex- prefs refervations, as he would have had if he had been intrufted with managing the ftock without any fuch refervations. The violation of fuch referved rights by governors without necefTity always gives a right of refiftance, and of violent defence or profecution, to the perfons injured and all fuch as incline to alhft them. ih^^o govcrnon II. Govemors wifely exerclfing the powers com- '"'"'^' ■ mitted to them, are juftly facred in this fenfe, '' That '' they are perfons of high importance to the publlck '' good, and all injuries or violence offered to them '' is more criminal, as it is more detrimental to the ^^ publick, than the like offered to perfons of lefs im- *' portance." But every good and ufcful man is facred in the fame fenfe, whether in the fame degree or not. The rights of governors, magiiiraces, or clergy, are
77;^ Rights (j/'GovERNORs. 269
no otherwife facred than thofe of other men, though Chap. 7. fometimes much more important. God has not by V-/^W; any revelation determined the forms of government, the quantity of power to be committed, or the man* ner of fuccelTion, nor has he nam,ed the governors of any nations now in the v/<3rld. His law requires that government Ihould be fettled; as it requires all other means of publick good. But the form of polity, and the degrees, of power to be committed, are left to human prudence. His lav/ the fame way requires pro- perty and confirms the natural and acquired ri^^hts of all men. But 'tis left to human prudence to tranf- a6l about them. The fame laws of nature and re- velation confirm to fubjec^ls their private rights, which confirm the publick rights of governors: and the for- mer feem the more facred and important, as the lat- ter are plainly deftined for their prefervation. In dif- foent refpe6i:s every adventitious right, private as well as. publick, may be jufdy called both the ordinance of God, and the ordinance of maji.
While governors feem to have honeft intentions, ^f^'^^ and their adminiilration tolerably promotes the pub- lick intereft, tho' they are not eminent in virtue, or free from all faults in their publick conduei:, we fhould' have much indulgence to their weaknefTes, coniider- ing the difficulties and the great temptations in thctr high il:aie.. They are ftill perfons of great importance to the publick interefl. Nay as to very worthlefs go- vernors; tho' nothing may be due to them on their - own account, yet much may be due on account ofl
vjcak ^oicrn:!
2/0
Rights o/'Resistance.
Book III the publick. Violent changes are attended with ma- v^yV'X^ny dangers and fome confiderable evils. They muft not be attempted, except when neceffiiry to avoid or prevent fome greater evils felt or juftly to be appre- hended from the prefent plan or the adminiftratioii "of it. While thefe mifchiefs do not furpafs the evils to be dreaded from a violent change, and while there is not a profpe6l of fuch fuperior good from the change as outweighs thefe evils, it is the facred duty of fub- jecls toward their country to continue in obedience, and to avoid the evils of civil war. But where it is otherwife, and no gentler methods can relieve or fe- cure a ftate from mifery, 'tis a duty incumbent on all toward our country to make all efforts to change the plan, or diveft fuch perfidious governors of their powers : all imaginable facrednefs of characters is then gone \ they ceafe to be blefTings, and are become plagues to mankind. jfi^j c/rf/?/- Jii, The right of refifting a limited monarch or T'.^ns. fenate, ufurping powers not vefted in him by the con-
ftitution, or invading the rights veiled in fome poli- tical council or affembly, which has fome fhare in the parts of the fupreme power, is very manifeft. But we mud not imagine that refiflance is only lawful in limited governments, where fome fundamental laws, or contra6l, or oath taken at the admifTion of the go- vernors to their office, exprefly referve certain rights to the people, and exempt them from their power. In thefe cafes the right of refiitance may be lefs dif- putablcj and all mankind as well as the fubjeftS; will
Rights ^/"Resistance. 271
more readily agree about the juflice of it, and the Chap. 7. proper times to ufe it. But in all governments, even '^-'^"'^^''''^-^' the moft abfolute, the natural end of the truft is ac- knowledged on all fides to be the profperity and fafe- ty of the whole body. When therefore the power is perverted from this end to the ruin of a people, ci- ther by a monftrous tyrannical intention, or any fuch folly or wickednefs of the rulers as mull have the fame effed, the fubje6ls muft have a right of refiftance, as the truft is broken; befide the manifeft plea of necef- fity. Not to mention again, that all conveyance of abfolute power, whether to a prince or fenate, with a preclufion of all rights of refiftance, muft be a deed originally invalid, as founded in an error about what is moft eflential in fuch tranfaffions, the tendency of fuch power to the general good.
This fuppofes no court or affembly fuperior to the j?<./?/?^„fr ;«... king in monarchies, or to the fenate in ariftocracies,^,^^;*^!/^!'' or to the popular aflemblies in democracies. It only-'"^'-- fuppofes that the fupreme civil magiftrates or rulers are fubje6l to the laws of God and Nature, and are bound by fome contradl, exprefs or tacit, which they entered into upon their admifTion to the power; and that they have no more power than the conftitution gave them; and that, fince all civil power is granted and received avowedly only for the publick good, he who employs it for a contrary purpofe, by this perfi- dy on his part, frees the other party from all obliga- tion, and confeqoently the fubjecls have the natural rioht of defending: themfelves a2;ainft wron2:s. A ric^ht
2-T2 Rights (^/Resistance.
]',ooKTir.of refiftanceagainfl injuries imports no civil fuperio- ^-^^^'''^-^ricy, nay ic is confiftenc with the lowefl fubjedion. The perlidy of a fuperior may fet his fubje6l free from all obligation to him : and even a flave may have a rif^ht of violently refilling a favage and barbarous maf- ter, tho' he had been fubjeded to llavery for the juft-
efl: reafons. jrbo is the IV. As in all conftltutions civil povi^er is acknow- 'it%Ji^fp7r.ledgcd to be a truft for the publick good, quelHons fijmfljabufid. ^^y ^j.j£-^ whether it be abufed or not by fuch perfidy
as forfeits it. We do not here fpeak of fuch impru- dences or miftakes of rulers as fubjects muft have ex- peeled in any fallible mortals. To bear thefe pati- ently, while their great interefts are fafe, they have ta- citly confented, and they ai*e facredly bound to do fo, both out of duty to a rula: in the main good, and to t^eir country. But if the queflion be, whether the a- bufes of power are fuch as are inconfiftent with a faith- ful intention, or fo great that they muft be ruinous to a people if they are perfifted in? one might think that neither of the contending parties will be the moft impartial judges In their one caufe; but the ruler can have the worfe pretenfions to judge, as the point quef- tioned Is whether he has forfeited his power or not ? and to be fure he never v/ill give judgement againft himfelf. To be fure the arbitration of fome men of wifdom of fome remote nation, which could gain no- thino: by cither fide, would not be ufelefs on fuch oc- cafions. But the people, or fuch a council of wife de- puties as rhey can truft, and eleded by thcmfclves,
HI many ca- revoke
Rights d/^RcsisTANct.' 273
have the beft pretenfions to a right of deciding this Chap. 7. queftlon, as 'tis for their iriterefl and that of their v.XV~\-/ conftituents, that all civil power is conftituted, and not for that of their rulers ; and who can fo j uftly claim to judge of any truftee, or any perfon impowered to manage bufinefs for others, as thefe perfons them- felves who have entrufted him, and fuppoited him for that purpofe.
Nay, if upon trial the people find that the plan of j,,^,^^ ^^^.^ ^ power they conftituted avowedly for their own good'^-*'"' is really dangerous to them, they have a right to dl-prwers thj ter it. It muft be ftrange effrontery in any governor/'""^^ * from any views of his own intereft, or that of his fa- mily, to hinder them to change it ; or to hold them to a contrail which he knows they entered into upon this expedlation and exprefs defign that it fhould tend to the general good, for which alfo he exprefsly un- dertook, when it is found to have a contrary tenden- cy. The governor adts as a Mandatarhis, who, after he had been once employed by others to manage fome important bufinefs of theirs by a general commi/Tion, fhould refufe afterwards to receive any fpecial inflruc- tions or limitations from thofe who employed him, or to quit his firft commifTion. If he cannot by rea- foning, and explaining the views of his condu6l, fatif- fy the people ; he may juftly refign the troublefome office, and may infift on compenfation of any damage he fuftained, and that his family be fettled in as good a condition as they were before he was raifed to this power; and the people are bound to do fo when it is
Vol. II. Mm
274 Rights (j/'Resistance.
Book lir.confiftent with their fafety. But to force a people or v^./V'V^'a crreac majority of them to continue a form they are diflatisfied with, or to be his fubjed:s whether they will or not, muil be ftrangely abfurd; as if millions of men, among whom are thoufands of equal know- ledge, virtues, abiUties, and capacities of happinefs or mifery, with the ruler, were dcftined as a proper- ty to be managed for his advantage, or pleafure, or vanity, contrary to the avowed end of all civil polity. litre nay u jf ^ prcj udlccd Dcoplc become fufpicious of their
greit crimes «" , ^ * , , IT * 1 C tl^ '
botbjija. rulers, or ot the plan oi power, without iumcienc caufe; and withdraw their obedience contrary to the laws of a good confliitution, they no doubt commie a great crime, often attended with horrid confequen- ccs. As does alfo the ruler who will retain a power that is truly dangerous to a people, however it has been conveyed. But when the caufe of the fufpicion is juft, they do a neceflary duty to themfelves and pofterity by making all the violent efforts which are neceffary to accompliih a change. And of the juftice of this caufe there is no common judge upon earth. Avr.f '/Ir/'il ^^^^ fuppofe a prince or fenate perfuaded that there right ofcon:p<i-[^ no iuft caufe of diftruftine: either the plan of power
li.,^ the -whole h- J. ..^ . ^ . . ^ ^ ,.
dsofapeopkioox then* admmiitration; and yet neither any explica- eju^.e ^ ""-^-Qj^g Q^. rennonftrances of theirs, nor any arbitration
can fatisfy a people, or a great majority of them, and remove their fears: as a people in continual fufpicion and fear cannot be happy, and the publick happinefs is the fole end of all civil power, the rulers cannot have a right to retain their power unlcfs they lind fome means
Rights o/^Resistance. 275
to remove thefe fears. No doubt men in power may Chap. 7. juftly and prudently take fome ftcps concrary to the ^^-^^^^''Vy prefent general inclination or approbation of their peo- ple, when they cannot iafely communicate the rea- fons of their condu6l to all. They may juftly efta- bHfh a plan which a ftupid people (hall not at fu-ft ap- prove; provided they have all moral aflurance that upon the difcovery of the reafons of thefe fteps, and upon a full trial of the plan and its advantages, there fhall be a general fatisfadion with both. A friend may, in fome fmgular cafes, take this power of coun- teraffing the fpecial infrruelions he has received from a friend who commiiTioned him in his bufinefs; nay, may venture juftly upon fome ufeful fervices without any commilFion at all, or contrary to what he knows his prejudiced friend would allow, not feeing the ne- celfity of what is done, or the eminent advantages to enfue upon it. But all thefe muft be fome tranfitory matters: nothing can juftify what will occafion a ge- neral permanent fufpicion and diftruft: as this muft deftroy all publick happinefs in any people, who are not already ruined in their minds by their flavcry, and have not loft all rational forethou2:ht or reeard to the future interefts of their country. Such fufpi- cion and conftant diftruft muft always remain at Icaft in fome degree under abfolute hereditary Monarchies and Ariftocracies, as there is no appearance of fecu- rity for the valuable interefts of a people under them.
IV. Thefe forms of polity alone are iuft which p^^^"' fi^Jo^
1_ 11 y- J 111 giveapiyri^ht,
nave a natural tendency to promote the general ^ooa^-^f^^^thnarcn^t
M-well contrived, m 2
2-76 Rights /^/'Resistance.
Book III. If ''^ form is confticuted which is equally applicable to evil and good purpofes, without any rational fecu- rity about its application to good, fuch as are all the fimple abfolute Monarchies, and Ariftocracies, or ra- ther Oligarchies : the perfons entrufted with the power have a right to ufe it for the publick good while no other plan of power occurs to the fociety. But they can no longer retain this plan when the majority will confent to a change, and any part of the people is diflatisfied with the old plan, and infifts upon fome better fecurity for the general fafety. Nay as com- mon fenfe mufl cafily fhew that in fuch plans no pro- per precautions are taken againft the greateft mif- chiefsj as foon as any one fees this, he is bound to confent to any necefiary limitations and precautions. That a people have ralhly contra6led upon an error in what is mofl: effential in the nature of the contra6^, gives no manner of right. It is the mofl dire6l perfi- dy, and a breach of the general facred truft of all ci- vil power, in any ruler to oppofe fuch limitations and precautions as are neceflary to prevent the mofl: ex- tenfive mifchief. No abfolute hereditary rulers can bind their fubjeds by any oaths againfl: all refifl:ance of them and their fucceflbrs *, or prevent their right of confl:ituting, when they can, fome proper methods of controU, in cafe of the fucceihon of any monflirous tyrants. They fhould always remember the fole end of their power, and that it is the bufinefs and inte- refts of the fubjecls, that they are intrufted to ma-
nao;e.
Rights (p/Resistance. 277
'Tis true, when an imprudent plan is fettled and Chap. 7. there is no hope of fuccefs in any efforts to alter it, ^^^^"^^ but they mult probably Itrengthen the chains ; or when ^'""^ '"/"*"""« the evils apprehended from the continuance of it, and"^^^ "' the advantages hoped from the change, are not great enough to overballance fome terrible mifchicfs to be feared in a civil war, the fubjeds may be facredly bound, in duty to their country, to defer their de- figns to fome more convenient opportunity; and in the mean time to continue in obedience. Even as a good man, in duty to himfelf and his family, is bound to yield his purfe to a robber rather than hazard his life in defending it. The rulers tittle to the fubjec- tion of the people, in thofe opprefTive and abfurd plans, is no better than that of a robber's to any mo- ney he had by force compelled one to promife him. Error is as juft an exception againft a contract as force^ And in thefe abfurd plans there is always this excep- tion, not to mention the ftrong plea of necefTit}'; Where the form indeed is in the main eood and the people fafe under it, tho' there be fome fmaller grie- vances arifing from fome of its parts of which the rulers are tenacious, we may judge that they have fuch external rights to retain thefe parts as a felfifh man has to hold another to an unequal bargain. The people may be obliged to acquiefce for a diftant u^ tility, or out of duty to the publick; and to prevent greater evils which might enfue upon any violent ef- forts for a redrefs. But the ruler has no proper rip-ht on his fide which he can ufe with a o-ood confciencc;
Ohligations <9/"Subjects to Rulers.
V. When any rulers juftly conftituted, and exerci- fino- their powers well, incur the odium of a great part o:/ij,;;r« :.of a diffolute people, and rebellions are raifed againft {iwfrlLrf?' Aem, 'tis no doubt the duty of the other fubjefe to goinji »•'•*'. '/"^'jfnpport them with all fidelity. They are in like man- ner bound to afTift and defend them againft any un- juft competitor, or any foreign invader without a juft caufe. This is due not only to the very beft of civil governors, but even to all who have in the main good intentions and fidelity, tho' attended wath many weak- neffes, fuch however as are not everfive of the great interells of fociety for preferving of which men uni- ted. The fubje6ls are the more facredly bound to fuch fidelity as the unjuft competitor or invader gives the very w^orft prefumptions of his intentions, and of his future adminiftration, by his attempts to obtain It. ,,.. ,, But if after all, fuch a one is fuccefsful, dethrones
;/>c-« they may ' ^ ■'
>*"•'"'«'» ""-the former governor, affumes the fupreme power to himfelf, and is fo eftabliihed in it, that there is little hope of reftoring the former poiTcfTor without the greateft bloodlhed and m.ifchief : if the conqueror fet- tles fuch a plan of power as fccures the important interefts of the ftate as well as they were before, fo that a reftoration could do no publick good; it be- comes the duty of the former prince to relinquiPn his tittle, as it was folely granted to him for the good of a people, which is now become inconfiftent with it. And the people, confcious of their prefcnt fafe and <^ary ftate, and that they cannot accompli ih a reftora- tion without the greateft mlfchiefs, may juftly, nay
Obligations <?/" Subjects to Rulers. 279
are obliged to acquiefce in the prefent change, and Chap. 7.
continue the publick happinefs by ratifying it. In all^^-^"^^^^^^
thefe mutual obligations, 'tis abfurd to fpeak of one
fide as continuing bound, when 'tis made impolTible
for the other to perform the duties in confideration
of which the obligation was conftitutcd. Such events
are exceptions underftood in all contracts.
VI. There is a popular outcry often raifed againft T^./r /.«r,v .'. thefe tenets of the rights of refiftance, as if they mu ft" t .'""'' '''*'* caufe continual feditions and rebellions: the contra- ry is abundantly known. Such mifchiefs are more fre- quently occafioned by the oppofite do&ines o-ivino- unbounded licence to vicious rulers, and making them expefl and truft to the confcientious fubmiillon of a people, contrary to nature and common fenfe ; when they are giving loofe reins to all tyranny and oppref- fion. 'Tis VvtII known that men too often break through the jufteft perfuafions of duty, under ftrong tempta- tions ; and much m.ore readily will they break through fuch fuperftidous tenets, not founded in juft.rea- fon. There is no hope of making a peaceful world or country, by means of fuch tenets as the unlimited powers of governors, and the unlawfulnefs of all re- fiftance. And where the juft rights of mankind are afferted and generally believed, yet there is fuch a ge- neral love of eafe, fuch pronenefs to efteem any tole- rable governors, fuch a fondnefs for antient cuftoms and laws, and abhorrence of what is contrary to them ; fuch fear of dangers from any convulfions of ilate, and fuch advantages enjoyed or hoped for under the
28o Obligations o/' Subjects to Rulers.
Book niprefeiit: adminiftration, that itis feldom practicable to accomplilli any changes, or to get fufficient numbers to concur in any violent efforts for that purpofe, a- o-ainfl: a government eftabUflied by long cuftom and law, even where there is jufi: ground given for them. We fee that they fcarce ever are fuccefsful except upon the very groffeft abufes of powder, and an entire perv^ei-fion of it to the ruin of a people. Mankind have oenerally been a great deal too tame and tradtable ; and hence fo many wretched forms of power have al- ways enllaved nine-tenths of the nations of the world, where they have the fullefl: right to make all efforts for a chano;e.
In aees of darknefs, and too often alfo in thofe of greater knowledge, by the perfidious arts of defign- ing princes, and by the bafe fervility of too many ec- clcfiaiHcks, who managed the fuperflition of a popu- lace, by the violent reftraints put upon divulging any jufter fentiments about the rights of mankind, the natural notions of polity were erafed out of the minds of men, and they were filled with fome confufed ima- ginations of fomething adorable In monarchs, fome rcprefcntation of the Divinity, and that even in the worft of them ; and of fome certain divine claims in certain families, abftrafted from any publick interefls of the nations to be ruled by them ; and upon thefe groundlefs attachments, the bcft blood of thefe nati- ons hath been ficrificcd by the contending fa6tions. No great wonder this, that millions thus look upon thcmfelves as a piece of property to one of their fel-
obligations o/'Subjects to Rulers. 28 1
lows as filly and worthlefs as the meaneft of them ; Chap. 7, when the like arts of fuperftition have made millions, ^^-^^"V^.. nay the very artificers themfelves, fall down before the block or ftone they had fet up, or adore monkeys, cats, and crocodiles, as the fovereign difpofers of their fortunes. Hence many men of learning too are not afhamed to fpeak of patrimonial and defpotick king- doms, where millions of men, and all their pofterity too for all fucceeding ages, are fuppofed to be in con- fcience bound to a perpetual fubjedion to one of their fellows, to be a piece of property fubfervient to his advantage or capricious humours, and to thofe of his fucceflbrs.
VII. Civil liberty and natural have this in common, Liicmciviiarj that as the latter is '^ the right each one has to aft ^'"''"^' ^' according to his own inclination within the limits " of the law of nature:" So civil liberty is '^ the right " of afting as one inclines within the bounds of the *^ civil laws, as well as thofe of nature." Laws are fo far from excluding liberty, that they are its natural and furefl: defence. Were there no law of nature re- ftraining others from incroaching or ufurping upon the rights of their fellows, there could be no right or enjoyment of natural liberty. And were there no chil laws protefting againft injuries, and unjuft force of the ftronger, there would be no fecurity of any right in fociety ; as all muft depend upon the will of thofe who had fuperior force. And as one may be faid to ad freely when he follows willingly the diredion of ano- cher, having a firm dependance on his fuperior wifdom
Vol. II. N n
V282 Obligatiotjs (^/'Subjects to Rulers.
Book III. and kind intentions ; it may be juftly faid, that in the ^ftricleft polity, where there are very exa6l regulations of manners, and a conftant difcipHne over all the peo- ple, there ftill remains to them abundant liberty, if they are fully aflfured of the wifdom and good inten- tion of the laws, and heartily acquiefce in them, tho' they can never countera6t them without incurring pu- nifhment, and are in a great part of their conduct con- lined by them to that certain manner which the law prefcribes. If indeed civil liberty meant an exemption from the authority of the laws, the beft regulated flates would allow leaft liberty.
In our modern plans of laws, where little regard 0,:d Roman mea-'i^ Had to thc cducation aud difcipline of the fubje6ls, Jafpief " '"their natural liberty is little confined in any fenfe ; and a people is denominated free, when their important interefls are well fecured againft any rapacious or ca- pricious wills of thofe in power. The Greeks and Ro- mans feem to have had another precife meaning to the poj)ulus liber, denoting by that term only Demo- cracies, or fuch forms where the fupreme power, or the chief parts of it at leaft, were in fome popular af- fcmbly, fo that the people in a body had the com- mand, or had their turns in commanding and obeying.
The Grecian
283
CiiAp. 8.
CHAP. VIIL V./V-VJ
The Ways in 'which Supreme Power is acquired;
howfarjuji.
[- w^
people coiiJlitutcT ipremacy ornia-
'E have already fhown that the only natural nedeejcj method in which fupreme power can be SLC-ff^ quired is theconfent or voluntary deed of the people,-''^^- and 'tis plain that there is no branch of fupreme power which cannot thus be conftituted, whatever majefty^ fupremacy, or digttity, we can have any juft concepti- on of (for we do not account for the rovings of an enthufiaftick imagination) is nothing elfe than a great many rights conveyed by each one of a great multi- tude to a prince or a council, or an afTembly*. No one individual was previoufly fupreme, or had this majefty, as no unite is a thoufand. But each one of a multi- tude conveying fome of his rights to the fame per- fon or council, may conftitute this fupremacy or ma- jefty, as many unites can make a thoufand among them.
More particularly, the leo-Iflative power arifes by ^^^"viipov-r each one s transferring to one perlon or council lomey« part of the natural right of liberty he had about his own a6lions and goods. The executive partly arifes from the fame conveyance, and partly from each one's
•* 'Tis well known that the old Romans conceived the majefttis in the people, hence laefa inajejias popiili Rojuani was the term for treafon. Flatterers applied it to ErapC" irors, ^ifiijlinsntes perfonaf?ipopiili -jcl civitatis.
N n 2
ch deeds.
^,g^ The Methods of acquiring
Book HI. transferring to the prince or council what right he had v/'VXjin natural liberty againfl: thofe who injured him or his neighbours, to repell the injury, and obtain com- penfation of all damages done, and fecurity for him^ felf and others againfl: like attempts for the future. Er «/;•/ of The power of life and death is no way fo divine /ifir c,d death. ^^^ j^ could not arife from a deed of the people. No Jm. " ' ""' mao-iftrate is fo far lord of human life, that he can of his own right take it away when he pleafes without a caufe. He has only thefe two rights about it, one di- reB, and of defign; when tis necefl&ry for the publick fafety to take away the lives of criminals. Thisrighc 'j^ men had among them in natural liberty. The ma- oifl:rate in place of the perfon injured, or in the name of the fociety, takes this neceffary precaution againfl future injuries. The other right is indireB, by which the magifl:rate may compell fubjefts to undertake the mofl; dangerous fervices for defence of the ftate, and even fuch as may coft: them their lives. Now in na- tural liberty every one had a right to hazard his life for any very important purpofe to mankind; fueh as defending his family, and neighbours, and their im- portant rights; and that in the way that Ihall pro- bably be mofl: efi'eclual. Common fenfe fliews that, where many are concerned in fuch violent efforts, 'tis highly neceffary that they act united and by one coun- cil. They all therefore had a right to commit the direction of fuch violent efforts to one perfon or coun- cil; and they could convey to this perfon or council
■\ Sec above boak li, ckap. 15. 3 >•
Supreme Power. 285
a right of compelling them, in cafe they fliould be Chap. 8. refractory, to what they had a right, and even were"^^^^^""^ obliged by the law of nature to do. 'Tis ftill more obvious how other parts of the fupreme power could arife from the fame fource.
'Tis true, the conftituting of civil power is the moft ^^^ '''s^^' 'f" Important tranfa6lion in worldly affairs, and hence^^'^^t? «/'t'^ the obHgations to fidelity in it are very high and {^J'''"''^"' cred. But this confideration fhews rather more the high obligation on rulers to a faithful adminiftration, than that on fubjccts to obedience ; and makes the rights of rulers rather lefs divine than thofe of the people,, as the former are deftined for the preferva- tion of the latter: tho' the rights of rulers may be of more importance than thofe of any one particular fubjedl.
II. 'Tis almofl fuperfluous to examine the reafons Ho-a> an, fcrr.. alledgedforfome divinity of one form of pohty above H'^"^ " '^'^ all others. That one is truly moft divine which is moft adapted to the publick good. The holy Scrip- tures do not prefcribe one form for all nations: and they feem leafl of all to favour the admired plan of abfolute hereditary monarchy. The law of nature re- quires the doing whatever moft tends to the good of mankind, as far as human prudence can difcern : and no doubt obliges too to conftitute the beft forts of ■ polity. But it enjoins this no more fpecially, than ic enjoins the ufe of the moft falutary food, rayment, ex- ercife, and the chufing the moft ufeful employmentis, and moft convenient forms of architecture: and has
2 86 The Methods of acqiiirwg
Book Ill.lefc thefe things to be found out by human fagacicy, vyVX.; no man thence dreams that all men are confined to one fort of food, drefs, exercife, or architecture ; and that they are criminal who vary from it, tho' they do noc apprehend its fuperior conveniency. Juft fo as to the models of government ; the original plan of power lliould be the beft that men can contrive: and they who conftitute it have tlie power by fome deed or ori- ginal law to appoint the manner of its continuance, or the order of eledion or fuccefiion to it. T>\v\ner\^hu HI. A diviuc right of fuccefTion to civil offices Is %ikuhuu ""ridiculous. In private fortunes, the law of nature does not appoint undivided inheritances falling to one. Some civil laws of this kind are monftrous. Nature makes frequently many co-heirs in private fortunes*, to wit, all who are equally near to the deceafed in con- fanguinity : and would fomctimes admit collaterals and afcendants together. The lineal fuccefTion -f , where one always reprefents the deceafed, is a mere human contrivance, for political views of having one enabled to fupport the civil or military offices, and do the publick fervices formerly incumbent on the de- ceafed. Primogeniture gives no right to this, except by pofitive laws ; and they are monftroufly unjuft when they give the whole inheritance to one of many equal- ly near and equally deferving. The very plea of fup- porting a publick office or political dignity ihould on- ly entitle to a larger Ihare, a double portion perha-ps,
* So did the old Roman hw, fee////?//./, iii. iit. i d.
4" See Novel. n8.
- ea til tiaiure.
Supreme Power». 287
But no reafonlng can be drawn from private fortunes Chap. 8. Gonfticuted for the good of one family, to the power ^^'"'VN-^ over ftates and nations, not deftined for the private intereil: of one family, but for the good of nations.
The only colour of rio-ht in fuccefTions to anv ci- '^'^'^'"''[■f'";
^ , J cejjnn not found-
vil powers conftituted by the deed of the people, muft' be derived from the deed of the people. And we have already feen how many juft pleas a people may have to revoke fuch deeds. The lineal fuccefTion fettled by civil laws may be clear, and prevent all difputes about the perfon who is next reprefentative accord- ing to thofe laws : * but the laws themfelves have no natural foundation of juftice. If primogeniture or fe- niority be allowed as one natural reafbn of preference: tho' 'tis not eafy to fhew why it fhould be fo in the fuc- cefTion of brethren to a brother, as well as of children to a parent; or why it fhould take place of manifefHy fuperior merit: yet this caufe of preference muft give place to that of fex in the firft ftep ; an infant fon taking before the wifeft woman ; and yet in the fecond ftep or v/hen more diftant perfons muft fucceed, no regard is had to the diftin6tion of fex in thefe per- fons, but they take according to the fex of the decea- fed parent by whom they fucceed, or according to the parent's feniority. Thus a grand-daughter by an el- deft fon deceafed, takes place of a grandfon by a fe- cond fon, nay of the fecond fon himfelf. The niece or grand-niece by an elder brother takes place be- fore the nephew by a younger, nay before the young-
* See Locke on Government, booki. ch. ii.
. S 8 The Methods 0/ acquiring
Bo OK III. er brother himfelf. And thus in innumerable other
u^c^tanfuc. If there be any thing divine or natural in thefe ^;iLA;://;;maccers, one would think the general hereditaiy fuc- A.;«/. ceifion Ihould be deemed fuch rather than the lineal.
In the former peifons fucceed according to proximi- ty of blood; a fecond fon before a grandfon by an el- der fon deceafed, a younger brother before an elder brother's fon; and fo on among remoter relations where there is fuch uncertainty of the perfons to fuc- ceed who can pretend either a natural or a divine law? where is the lineal fuccefTion, even as to private for- tunes, fettled in fcripture? for about hereditary king- doms there are no Laws. The lineal fuccefTion is fcarce to be found among thefe laws which {etded circttmci' Jion, the marryhig of brothers widows, and imalienahlc lands: and if it were found there, it binds no other nations. Does the law of nature admit of the fuc- cefTion of females to civil offices, or of perfons relat- ed by females? a Briton affirms, and a Frenchman denies it. Shall coufms or nephews by the mother be admitted, or only thofe by the father? What fays any law of God and nature to thefe cafes ? We all know our own civil laws ; and are fo inured to them, by long cuflom, that we almofl deem them natural. If any form had Had auy onc form of polity been of divine ap- *S«^^f^A^lrpointment for all, can we imagine that a good God iJ>T<fd" ^'Svould have given to mankind unintelHgible laws like Draco. He would have named the firfl rulers, expref- fcd all the publick fundamental laws, fpecified the fe-
Supreme Power. 289
veral powers granted, and clearly determined the or- CnAr. 8. der of fucceffion. Nature fliews that civil governments ^-/"W.' cannot generally admit of divifion with fafety. The fucceffion muft be undivided: but what determines the line? all this is * human contrivance ; either fome old deed of a people conveying civil power to a prince and his heirs, according to the ufages received in o- ther fuccefhons, except where the nature of a ftate requires fome differences, or fome old deed of a prince, once vefted with power to appoint an order of fucceffion; or who by violence compelled a peo- ple to eftablilh the order he had appointed. a-, ,;./;, ,/
IV. Of all that ever obtained the name of right''"^"'^" nothing has lefs foundation than that claim called the right of conqueft. If there was nothing elfe as a foundation of right but fuperior force, it is the right of a pirate or robber to his prey: it is an abufe of lan- guage to call it a right.
We muft here recolle(5l what was faid above + ^_~T^'onginacqu\r.
, ir»« \ ea without a juji
bout violent defence and profecution of our rights ;'''^«/^- and about the injuftice of making captives of all forts ilaves : from the principles there maintained it appears, I. That in an unjuft caufe a conqueror acquires no right he can ufe with a good confcience, not even by any treaty he extorts by violence. And where the conquered have not refigned their claim, they have ftill a right to retake whatever they have loft, and e- very neighbour ftate has a right to affift them.
* See Mr. Locke on Government book i. ch. xi.
•\ See above Book II. ch, xv. § 5. And the 3. ch. art. 3. of this book.
VoL,IL O 0
^ oQ Tf^^ Methods of acquiring
Roo-III 2. In the jufteft caufe there is no further right, v^/^v^^than after repelling injuries to demand full compen- ,4V.l"r/-fation of damages, and fecurities againfl: like injuries fars to citn, r j^ f^t:ure, bv infli6lino: fuch punidiment on the ouilty, not on the innocent, as may deter all from like injuries for the future. What is neceilary for thefe purpofes may be juft, but all violence or op- prelfion, not thus neceflliry, is injurious. Now, firft, injuries are ftill repelled long before a conqueil:, and in- deed full reparation of damages is alfo generally ei- ther obtained or voluntarily offered by the unfortu- nate fide, before they are entirely fubdued. If, after this is offered according to arbitration of any impar- tial judges, the conqueror demands more, or perfifts in violence in order to obtain more on this head, he ceafes to have a juft caufe. Almoft every vanquilhed ftate can compenfate any damages they have done by the moveables of the flate or of the fubje6ls, or at leail by an annual tribute for a certain term; and they are always willing to make compenfation in this manner, rather than by lofing their independency and becoming a province to another prince or coun- try, or by dividing their territories. And the perfon bound to make compenfation, if he is willing to make it fully, has a right to chufe out of which of his goods he will make it. yaufecriiy Aud as to fccurity ao-ainfl: like offences for the fu- ture, the world lees it is always obtamed and always offered before an entire conqucft. What is allowed to be fufficicnt fecurity againft a ftate not yet con-
Supreme Power. 291
quered,andretaimngyctmuchof itsflrength, isfure- Chap. 8. ly fufficient againft one entirely defeated and broken. '^-^"^^""^^ Now delivering up fome frontier forts, or demoliih- ing them, giving up lliips of war, allowing garrifons of the conqueror maintained at the charge of the van- quifhed in fome frontier towns or harbours, are thought in all arbitrations fufficient fecurity ao-ainft a ftate yet in almoft all its vigour; and how much more fo are they againfl: one almoft ruined by vi6to- rious arms.
As to punlfhment; it can with no fliew of juftice, /;'^^','"f be inflicted upon the perfons or goods of the \vhoiQ ^'^"hcsniit^Ziy. body of a people, as we fhewed * above that they are generally innocent, in every refpecl:. Grant even all or moft of the heads of families had been guilty, their lands and other goods are truly the property of wives and children along with them, tho' the heads of fa- milies are the natural adminiftrators for them. The joint proprietors are univerfally innocent, and feldom is there any guilt even in one of a thoufand of the heads of families. And yet the ruin or the enflaving of a ftate is a fevere puniftiment on all its members. Puniftiment is naturally deftined for a general fecu- rity to all around. Now the victors aftuming by force all civil power over the vanquiihed, is fo far from giv- ing fuch fecurity, that it rather threatens all around with greater evils than they had to apprehend from thofe who were conquered; and 'tis the intereft of all around to prevent fuch conquefts.
* Chap.ili. of this book art. 3. O O 2
202 T/je Methods of acquiring
Book III. If any principles of juftice led conquerors to pu*- v^/VN^nilh they Ihould inflid: puniihments only on the guil- csufcs'ji'oMtiVf, and chiefly on the principal caufes of any inju- fuuiji:cj. ^.-^^ ^^^y j^^^l fuilained; and thefe are the princes,
or chief governors of the injurious ftates, and their counfellors. They are the murderers of all who pe- rifli in the wars they unjuftly raifed. Were they to fuffer themfelves, we fliould have a more peaceable world; they would be more cautious about the juftice of their defigns. Bad princes are not rcftrained by the apprehenfion that their fubje6ls may be puniihed. If indeed any ftate has frequently been injurious to its neighbours, and fliews either fuch rapacious dif- pofitions prevalent among them for a long time, or have obtained fuch an opportune fituation for oppref- fing all around them, by pofTefTing places fingularly ftrong, or fuch ftrait feas that they can always be mafters of the trade of many neighbouring ftates : fo that others cannot be fecured againft them but ac an intolerable expence of fleets and armies. The neighbouring ftates have certainly a right to diflodo^e them out of thefe faftneftes, to difpoflefs them of all forts or harbours near thefe ftraits ; or perhaps fome- timcs to force this band of robbers, rather than ci- tizens, to diftbciate, and to incorporate them with themfelves, allowing to all of them whom they can- not convi6t of crimes to enjoy all the equitable rights of their own fubjeds. But it would be the greateft fol- ly in the neighbouring ftates to allow any one prince or ftate upon conqueft to obtain the fluiie power over
Supreme Power.^ 2Qg
all" around which the injurious ftate had formerly by Chap. 8. virtue of its fituation. ^^^VXJ
V. The fubjeds of an injurious ftate, tho' they be j^^^„ ^^^,.^,^^ free from all guilt in thefe publick injuries, may on ^'■^■^"*^'' '"""'- certain events be liable to compenfation of damaf^es-. " ' This fhould indeed firft be made by the authors of the injuries out of their private goods; if thefc fail, it fhould be made out of any publick ftock the ftate may have, or the treafury. And this can feldom fail, as it may be fupplied by new taxes impofed for this purpofe. And in this manner, did the cuftoms of the world authorife it, ftiould conquerors demand com- penfations. But when compenfation is not confented to by the injurious, the injured muft take it by force, the goods of the rulers are the laft they can reach or feize for this purpofe, and they muft redrefs them.^- felves the eafieft way they can.
The fubje6ls, as they have conftituted this plan of power, and raifed thofe governors to execute it, are naturally * lyable either to compenface the damages occafioned by thefe means, or elfe they are bound to deliver up thofe governors; and to alter any thing in the plan of power that may lead the ftate to be in^ jurious. They ftiouldhave their option of either of thefe two, and upon agreeing to either, fliould enjoy all their rights and liberties.
But as the people are generally averfe for reafons The right of often very trifling and fuperlHtious, to-give up their f,|J'|^'y^!|^^7'" governors to juftice, they are bound to compenfite
* See this claim explained above, chap. 3. art. 3. xanAjf. 9. tit. i. and 4.
2Q A How Civil Power is acquired.
Book III. ciamao-cs. And this juftifies the feizures made mwar ' of the goods belonging to fubjeds of the hoftile ftate, when we cannot obtain compenfation either from the goods of then' rulers , or from the publick llock of the rtate. Upon thefe our firft demands fliould be for any damage luftained, either by publick council of the ftate, or by any injurious adtion of its fubjedts whom it could have reftrained or obliged to compenfate da- maoes and refufed it. When we cannot thus obtain it, we have a right to take it from the fubje6ls as we can. And let them have recourfe to their rulers for compenfation of thefe lofles they fuftained on a pub- lick account, as they have a juft right to obtain it from them out of the publick ftock. As the wealth and power of a ftate depends on that of its fubje6ls, the feizing their goods is often the only way we can have of diftrefTmg an injurious ftate and bringing it to juft terms of peace.
When the ftate agrees to juft terms, the innocent fubjecls, whofe goods were feized, ftiould have com- penfation either by reftitution, or by obtaining the va- lue. If the goods are retained by the captor according to the treaty, they are fo much received on account of the damage fuftained b}'*his country, and lelTen the claim upon the ftate. In that cafe the fubjecl whofe goods wTre feized has a claim upon his own ftate for compenfation. If the goods are to be reftored, or the value be given by the captor, his country has the great- er compenfation to claim from the other ftate on ac- count of thofe injuries which occafioned the violent
How Civil Power is acquired. 295
felzures. The former method is more generally r^e- Chap. 8. ceived as to any goods taken In publick wars, tho' ^.-/'^W; compenfation is feldom obtained for private lofles by feizures.
VI. 'Tis argued in favour of the rioht of conaueft ^'' *".''" ""' *^ that he who enters mto an unjuft war tacitly con-'?''!'^'"'"^'/''^- " trails or confents to whatever condition the fortune"''^ "" ^^ of war fhall place him in, and confequently when ^^ conquered he is bound to civil fubjeciion to the '^ viclor, or to flavery, when this is the cuftomarv '' treatment of the vanquifhed." But this is plainly abfurd. The nature of war, and all the profefTions and declarations made about it on both fides, exclude all conception of any fuch contradl, unlefs it has been exprefly made; as fometimes mdeed it has been as to a coalition into one ftate or civil fubje6tion upon hu- mane terms. Having recourfe to arms is a declara- tion that we will affert our rights, and give none of them up either abfolutely or upon any contingency, as long as we can defend them. Nay after the moil entire defeat, none imagines it a piece of perfidy that the vanquifhed rally again; or that people tranfport themfelves to any other part of the world, or get new allies to renew the war. All thefe fteps would be deemed treacherous if there were any fuch tacit con- vention apprehended.
A^ain there is no prefumino; that the uniujft fide •^"^^; " f''^^,
c -L o J^ cannot be alleged
have made fuch a covenant unlefs the other fide alfo'"^'"''- confents to the like terms. Now did ever any man repute the military operations of a ftate in the juft
2 p6 How Civil Power is acquired.
Book III. defence or profecucion of Its rights as importing a <-/'Wj covenant to renounce its independency, fovereignty, or the perfonal Hberty of its people upon the event of a defeat? and neither does any fide in any pubHck war ever own or profefs its own caufe to be unjuil. They do not therefore enter into any fuch contra6l, nor can they be deemed to have done it, as they al- ' ways declare the very contrary. Nay phates and rob- bers, whatever rights of mankind they forfeit or ab- dicate by their avowedly unjuft violence, are never fuppofed to eontra6l about their future condition in cafe they are conquered. Nor are their attempts to efcape, or any other violence of theirs deemed perfi- dy, where they have not given exprefs promifes. Or mcic hy a Thc pretciices of the contra6l of a whole people '.vh.ie ^cofic. ^^^ ridiculous in this cafe, except as to pure Demo- cracies ; and in thefe too, for the above reafons, they are groundlefs. In other flates, not one in an hundred have any hand in any wars undertaken or publick in- juries their ftate may have done; and many may not knosv whether their country is in war or peace, which is generally the cafe of minors and women, and even of many lower heads of families. And yet this won- drojus right of conqueft, fupported by a tacit conven- tion, muft fubjecl them all to a grievous punifliment, a dcfpotick,or patrimonial government over them and their pofterity to all ages, nay to perpetual ilavery.
Suppofe thc cuftom of fubjeding the conquered to the abfolute civil power of the viclor, or of mak- ing tlicm llaveS; to be uaiycrfally received; tho' coa-
How Civil P o ^r e r is acquired, 2 9 7
traiy to all juftice; fuppofe too that the governors Chat. 8. made fuch exprefs concrads: they could bind no ci- ^^^^^'^'"^^ vil fociecy by them nor any peribn but themfelves. By fuch a contract they manifeilly exceed their powers, and all the rights which can be prefumed as granted to them in any civil polity. The power veiled in them is only what may probably be ufeful for the general interefl of their countries. They have no right to deftroy, alienate, or enflave, a people, either by abfo- lute fales or by bargains upon a contingency. Every fuch contract muft be fraudulent on both fides, con- trary to the well known truft of all civil power, and the known rights of other innocent perfons; and there- fore can produce no obligation except upon the per- fons of the contractors. A prince or fenate in the moft abfolute form has only the right of a mandata- riiis empowered to tranfacft for the benefit of others without fpeclal inll:ruc1:ions. The employers fufpec^ing his perfidy are bound only to this alternative, either to ratify the contract^ or if not, to indemnify the o- ther party of any lofs fuftained by means of the pcr- fon thus commifiloned to tranfavSt for them. Nay in lieu of this it is enough in many cafes if they deliver up this fraudulent tranfactor to thofe who arc inju- red by him.
VII. Thefe reafons fhew that mere conquefl, even in a juft caufe, can fcarcely give any right of civil power over the conquered nation. Now conquefl is almofl the fole foundation alleged for defpotick and patrimonial kingdoms,wherc the prince can fell^ trans-
Vol. II. Pp
cr palrtii.ouiut
2 Q S Hov) C n* I L Power is acquired.
Book III fo, or divide the kingdom, or fubje(51: it to any form of power, or to any perfon he pleafes : and therefore they may generally be deemed grofsly impious ufur- pations upon the rights of mankind.
Grotius and other great men fuggeft fome poilible but highly improbable cafes in which a patrimonial power may feem to have another foundation, in con- fequence of fome * confent of a people in the utmofl dano-er of a maifacre from fome barbarous invader, to avoid which, and to induce fome potent neighbour- ing date to defend them, and fuftain a perilous war againft the invader; they may fubjecl themfelves as far as their rights are alienable to this potent neighbour, and give him a right to rule them in any manner he pleafes, confiftent with humanity, for his ow^n advan- tage. A crime or great damage done by concurring multitudes may alfo juftly fubjecl them to flavery, and forfeit all thefe their alienable rights which may be vcquifite for compenfation of damage. But this laft caufe can only found a temporary power over the cri- minals, or the authors of this damage themfelves ; their innocent pofterity have all the natural rights of mankind, and that of liberty among the reft, as foon as they have compcnfated the neceilary expences made on their education. And the power over the criminals, or the authors of unjuft damage, fliouldnot be called a civil power even while it fubiifts.
As to contracts made in the utmoft diftrefs, there can be no more j uft right acquired by them to a prince
* See the cafes m.-ntioncd in Grcihu d.' J. B. et P. lib. i.
How Civil Po\ver is acquired. 2cj<-)
or neighbour-flate, than what it would be equitable CuAr. p. and juft to demand in confideration of the impor- ^-/^/''X tant fervice done. If much more has been rallily pro- mifed, there is a right of redrefs by arbitration, as in all other opprefFive onerous contrads, where there has been a millake on either fide as to the values. Thefe general fubmilfions muft naturally be underftood with many tacit refervations and flipulations ; that the pro- tedion of this potent ftate fhall be continued, that the civil power fhall be exercifed with humanity, and for its natural purpofes. Confentingto fubjeclion to one potent ftate, which exercifes its power mercifully, does not import a confent to be transferred to any other weak or impotent one, or to any foolifh or inhuman tyrant. No right of alienation, or difmembring, and dividing can be prefumed, upon any fubmifTion of one ftate to another. Nay the pleas of necefhty may al- fo take place, againft the moft exprefs contracts, when any thing is attempted which muft create a great un- neceffary mifery, contrary to what muft be underftood as ftipulated in all fubmiftion to any human power. All innocent perfons have always a right to infift on better fecurities for their fafety than are given them in any hereditary patrimonial kingdoms ; and even cri- minal parents cannot forfeit this right of their inno- cent children, or any other natural or acquired right they hold underived from their parents.
VIII. If a conqueror, even in a juft caufe, com-^J^|^7/',|^J;'2; pels the conquered people to contract with him and'''i"''''^''"*-"' fubmit to his civil power; as this contra6l is extorted ''•'''?.
Pp 2
o Q o How Civil Power is acquired.
Book III. by unjuft violence he obtains no right which he can Ky^v"\j life with a good confcience, more than a pirate or robber. His caufe is now unjuft, however it was juft before. And tho' it be a vakiable matter to the con- quered, that he fliould now defift from violence when he has obtained all he could juftly claim by war, (as he always does or may without this civil fubjedlion); yet it is what the conquered have a right to. And his not perfifting in any further violence, which could have been unjuft, gives him no claim upon them, more than my not killing a man, whom I meet unarm^ed and defencelefs in a defart, gives me a right to his ferviees. But if a conqueror gives protedion, as he is bound to do, and a vanquiihed people defift from arms for fome time, and in matters relating to com- mon peace and order apply to the vicftor, or to his courts for juftice; this feems indeed to import a con- vention of fubmitting for fome time and has the full force of a truce, nay may perhaps oblige them not to renew hoftilities without previous indicftion or de- claration, and yet the prefent power of the conqueror, making all efforts againft him dangerous, takes away all caufe of prefuming any tacit confent to perpetual fubjeclion. Nothing but an exprefs contra61: volun- tarily entred into, without unjuft force extorting it, can give a right to the conqueror to demand a per- petual civil fubjedlion from a people and their de- fcendants. v.n,,iracu When however a conqueror in any caufe by foice ^•.A.'..,>f retams his power, and yet Icttlcs fuch a plan of go-
ii/bw Civil Power ts acquired, 301
vernment as fufficlencly enfurcs the happinefs of a peo- Chap. 8. pie, fo that without compulfion they are heartily fa- ^"-^^'''^'^ tisfied with it: when the reftoration of any former prince becomes impracticable, or at leaft is fo, with- out new terrible dangerous convulfions, the event of vvhich may be very uncertain; as all the right of the former prince was vefted in him, folely for the good- of the ftate, which now plainly requires the aboHti- on of his right; he is highly infolent, and injurious, if he demands that the peace and fafety of a whole people be hazarded, or perhaps facrificed for his gran- dure: and the people have a right to take the only probable method for their fafety by fubmitting to the conqueror. The conqueror indeed is guilty of a ei'eac crime in retaining the power and may be-oblio-ed in conference to diveft himfelf of it: but, in duty to themfelves, and to the general fafety, the people are obliged by the contract they make with him. In a tra6l of time the fuccelTors of the old prince either quit their claim or become uncapable of the office. Their right extlnguilTies ; and that of the fuccellbrs- to the conqueror may become every way compleat, by the continued hearty content of the people.^
IX. In Monarchies or Arillocracies made heredita^ Ho^nefuvda. ry by the old deed of the people, or by the fundamental """"i '"""' 1
J J X L ' J \::CCC<j'.on are to
laws, the right of fuccefllon to the offices generally '' '■■•''''''^''''■ refembles that of liefs, where the fuccefTor holds not in confequence of any deed of his predeceffor, fmce he had no power of excluding him ; but he holds, by vir- tue of the fundamental laws, all the powers and the
^Q2 How Civil Power is acquired.
Book ill.annual emoluments of the office, and that dillncum- »^^V'X-/'bcred of any debts the predeceffor contracted; and as there is no natural reafon, or equitable foundation in nature, previous to a conftitution made by the peo- ple, that offices, deftined for the fervice of the pub- lick, (liould defcend hereditarily ; all the rights of per- fons in remainder mufl: folely depend on the funda- mental law or original contra6i:.
Where there is nothing fpecially determined in old laws about the manner of fuccelTion to a crown, but in general it is made hereditary. It is prefumable that the law intends * the fame order of fucceffion that is received in private fortunes, by old cuftom, except when the nature of the office plainly requires a vari- ation. Thus the kingdom muft defcend undivided, tho' other inheritances are divided. And it is confin- ed to the defcendants of the firft prince, unlefs the contrary be exprefly declared. How to ic un- As in the old laws of fuch Monarchies, feldom is fvr!ri^'/Ir/'J-^^^y ^^"^Z exprefly determined upon the event of a urc. forfeiture incurred by mal-adminiftration of one in
pofTeiTion : and yet common fenfe, and the known in- tention of the office, muft Ihew that a grofly perfidi- ous adminlilration, contrary to exprefs engagements, and the very end of the truft, muft forfeit the right :
* Thus if inheritances are fimply he- reditary, that is dcfcenJing to the next in blood, fo it is prefumed they intended the crown fliould defcend; thatis,forinftar;ce, to a fccond fon in pieference to a grand- fo;i by a deccaft eldcli fon; to a younger brother in preference of a nephew by an
elder brother deccafed : to a grandfon by a youngefi fon or daughter, in preference of all grand-daughters. If the lineal de* fccntis received by cuflonijfo it is prefum- ed they intended the crown Ihoidd de- fcend.
How Civil Power is acquired. 3 o r
if the cuftom be univerfally received in a nation, that Chap. 8. in all inheritances whofoever incurs a forfeiture, or^.y'W^ voluntarily abdicates, precludes not only himfelf but all his defcendants, nay collaterals too; fo that the in- heritance reverts entirely to the fuperior, or to the perfon, or politick body which granted it; it is pre- fumable, in all fair interpretation, that this too was the intention of any old fundamental laws or original contrads as to the defcent of crowns, where nothing is more fpecially determined upon the event of for- feiture or abdication. In the forfeitures of private inheritances or fortunes indeed, fuch regulations are contrary to humanity, as thcfe fortunes are truly de- ftined for the behoof of a family. Wives and chil- dren are joint proprietors, tho' the head of the fa- mily has the fcle adminiftration. But the heirs in re- mainder to crowns have no fuch equitable plea. The regal orlice is not in its nature deftined for the be- hoof of any family, but is a trull for the fervice of a nation, nor is there any equitable foundation to claim that fuch offices fhould be hereditary or defcend ac- cording to proximity of blood, or by a line of repre- fentatives. Thofe in remainder have no other claim than from the old deed or law. And it is prefumable that the true intent of it is to exclude all defcendants at leaf!:, and fometimes the whole family, of fuch as forfeited; fince nothing elfe called hereditary . de- fcends to the pofterity, or to any kinfman of one who had forfeited*.
* An incapacity only juftifies the exclufion of t^e perfon incapable. But niul-ad- mir.illration may exclude the whole line, as they holU orAy by tlie okl law.
-, o jL How C I V I L P o -w t R h acquired.
Book III. The intention of fuch old laws is very manifeft in countries where all inheritances were antiently held as iicfs, conveyed upon condition of the fidelity of every one who fucceeded, fo that upon any one poiTefTor's incurrine a forfeiture or abdicatino;, the fief reverted to the granter as in his former eflate, without any reo-ard to innocent defcendants or collaterals. This cuftom or law, how inhumane foever as to private for- tunes, fliews what we are to prefume was the mean- ino- of the old conftitution of an hereditary crown. And indeed the reafons of humanity do not hold a- o-ainil like forfeitures of political offices deftined not for the good of a family, but for the publick intereft. There may however be many reafons of prudence, and fometimes of humanity, to induce a nation, upon fuch a forfeiture, to grant the crown anew to any worthy pcifon of the antient family, rather than to a new one, but this is plainly left to the prudence of the na- tion. A forfeiture is a legal bar to the claims of all defcendants, fmce they have no other than from the law.
X. 'Tis furprifing how one fhould conceive any
tr founded in tia- «• i** 1* i •! PI* ^ r C
tun in tkciincaimmz divuie or natural ni the rio-nt or hneal iuccel-
/r -. ...
ucccyou. j^iQ^.^ when it is plainly preferable to the fimple he- reditary one only for this, that it is free from uncer- tainty or debates about the next fuccefTors. Where- as it is at the fame time expofed to fome vaft incon- venlencies, and caufcs moil abfurd fuccefTions, v/hich the fimple hereditary order would have prevented. For initance, by lineal fuccelllon the crown of a king-
Kcthin^ ifivinc
How Civil Power // acquired. 505
dom in the greateft confufions, and requiring the di- Chap. 8. redlion of the wifeft prince, muft defcend to the in-^^^^'^'^''"^-^ fant grand-niece by an elder brother's daughter, in preference of the moft worthy younger brother of ma- ture age and wifdom. Each one inured to the cuf- toms of his own country confufedly imagines them natural, without refle6ling or confidering the o-reac diverfities of cuftoms which have been received in dif- ferent nations, when yet the crown was hereditary in one form or other, each of which cuftoms long ufe makes fomething natural.
XI. As the people have a rieht of refiftance "''^:f<"'j"'' and of dethronmg a prmce who is grofly perfidious ^'■'■''?^'''^'•''- to his truft after he comes to poffefs it, whenfoever it is necefTary for the prefervation of the ftate; we may certainly alfo conclude, that when an heir ap- parent fhews before he comes into pofTefTion either fuch ftupidity, or fuch cruel, and tyrannical difpofi- tions, or fuch pernicious fuperftitions and perfidy, as are inconfiftent with a faithful difcharo;e of the truft intended for him by the laws, and with the fafety of the people in their moft important interefts civil or religious : they have a right to prevent his coming in- to poftelTion, and thus to prevent all the bloodftied and other mifchiefs which muft attend a civil war to dethrone him: fince fuch a perfon can give no real fecurity againft his abufe of power, to the very worft purpofes when he fhall obtain it.
In particular, tho' errors in religion, as fuch, don-hutruHsprf. not make void any civil rights of men; though no^l^'^tr^"'''''
Vol. II. Q^q
^^5 Hoiv Civil Power h acquired.
Book in.manwould forfeit his right by Polytheifm, Deifm, or LXVN^ Heathen idolatry, while he held no fuperftitious te- nets which would make him unfaithful to his con- tradls, cruel and opprefTive to his people, or unjufl in his jurifdidion, or unfit to fupport the liberty and in- dependency of the ftate: yet if he obftinately adheres to fuch tenets as thefe, " That he fhall have a divine " ri<^-ht to acl as he pleafes in flate affliirs, even to '' fell or alienate the ftate, that he fhall have a right, " and be obliged in confcience to extirpate by fire " and fword fuch as differ from him in religion, and " that this duty muft take place of all promifes or " eneaeements made by him or his anceftors to the " people: that he is obliged in confcience to allow a " foreign prince, under a pretended religious cha- " ra(!T:er, to exercife a great deal of civil jurifdi6lion " within the ftate, and over many of its members, and " to grant inveftitures to many lucrative offices of " great fecular power, tho' with mock fpiritual names ; *^ and to prohibit all commerce with any fubjeds of " the itate who are interdicted by him:" a perfon holding fuch tenets, may be more juftly excluded from fucceeding to the crown of a free independent nation governed by laws, than a madman or an idiot as he muft be much more pernicious to the publick. ^, . , r XII. The fame do6lrine about the rii^hts of con-
Tnt rt^hti of a ^ <3
jicic over uio. queft which holds as to Monarchs, holds alfo as to all bodies politick under any form: and as great invafi- ons have been made on the rights of neighbouring ftates by Ariftocracies and Democracies, as by prin-
How Civil Power Is acquired. ^07
ces.Wemayfinifl-ithisfubje6lbyconfideringthe rights Chap. 8. of the mother- countries over colonies. Thefe are fent with very different views and rights. ^ Some- times a nation overftocked, and not defirino- to en- large its territories, fends out a part of the fubjecls well provided, to find new habitations for themfelves, and to found a new independent ftate, upon which no o- ther claim is retained but that of a friendly alliance. Sometimes colonies of free citizens are fent to make new conquefts, with a view that the colony fhould remain a part of the old body politick, and that it fhould enjoy the fame rights with the other parts of the body. Thefe two ways of fettling colonies are hu- mane and equitable with refpe6l to the colony. Some- times upon a conqueft or acquifition made of diftant lands, a colony is fent to pofTefs, defend and cultivate them, that they may be a province to the old ftate, to be managed for its advantage; fo that the mem- bers of the colony, while they refide there, lliall not ftiare in the power or privileges of the- antient fub- jecls. If any number of citizens voluntarily confent to thefe terms, and are allowed, when they incline, to return to their mother-country with their fortunes, and enjoy all the rights of other fubjecls, there can be no injury alleged as done to them. But it v/ould be a great hardfhip, not juftifyable but by fome great neceility, to force any number of fubjeds into a worfe condition in point of right or liberty upon their bold-
* Such was the fettlemcnt of Lacedemonians at Tarentam undoi- Thalantus, and thofe of other Grecian ftates In ItalV'
g How Civil Power is acquired.
Book Ill.ly adventuring abroad and fettling their fortunes in i^yv'XJa diftant land, by direction and countenance of the ftate to increafe its dominions or enlarge its trade, or X.O make laws after they are fettled in fuch diftanc places, that ihall deprive them of any valuable right or enjoyment, which is not deilruclive to the old ftate, or beneficial to its enemies or rivals. wwnuhthat Nay as the end of all political unions is the ge^ ;l^;lw.'""neral good of thofe thus united, and this good muft be fubordinatcd to the more cxtenfive intereftsof mankind. If the plan of the mother-country is chang- ed by force, or degenerates by degrees from a fafe, mild, and gentle Hmited power, to a fevere and ab- folute one;' or if under the fame plan of polity, op- prefTive laws are made wdth refpe(5t to the colonies or provinces; and any colony is fo increafed in numbers and flrength that they are fufficient by themfelves for all the good ends of a political union; they are not bound to continue in then- fubjedlion, when it is grown fo much more burdenfome than was expedled. Their confent to be fubjeft to a fafe and gentle plan of power or laws, imports no fubjedion to the danger- ous and opprefTive ones. Not to mention that all the principles of humanity require that where the retain- ing any right or claim is of far lefs importance to the happlncfs or fafety of one body than it is dan- gerous and opprefTive to another, the former Ihould quit the claim, or agree to all fuch reflridions and li- mitations of it as are neceffiiry for the liberty and hap- pincfs of the other, provided the other makes com-
How Civil Power is acquired. 209
penfatlon of any damage thus occafioned. Large Chap. 8, numbers of men cannot be bound to facrifice their*, own and their pofterity's Kberty and happinefs, to the ambitious views of their mother-country, while it can enjoy all rational happinefs without fubjedion to it; and they can only be obliged to compenfate the ex- pences of making the fettlement and defendino- it while it needed fuch defence, and to continue, as good aUies, ready to fupply as friends any lofs of ftrength their old country fuftained by their quittino- their fubjecSiion to it. There is fomething fo unna- tural in fuppofing a large fociety, fufficient for all the good purpofes of an independent political union, re- maining fubje^l to the direction and government of a.diftant body of men who know not fufficiently the circumftances and exigencies of this fociety; or in fup- pofing this fociety obliged to be governed folely for the benefit of a diftant country; that it is not eafy to imagine there can be any foundation for it in juftice or equity. The infifting on old claims and tacit con* ve.ntions, to extend civil power over diftant nations^ and form grand unwieldy empires, without regard to the obvious maxims of humanity, has been one great . fource of human mifery.
Bom^m. CHAP. IX.
Of the Nature ©/"Civil Laws and their Exe- cution.
L np H E leglflatlve and executive are powers ex- A erced wichin the llate: Of thefe in the firfl
place. H;^ far the As thc cnd of all laws fliould be the general good r.^i77r'^/,5-and happinefs of a people, which chiefly depends on ""* their virtue: it mull be the bufineis of legillators to
promote, by all juft and effectual methods, true prin- ciples of virtue, fuch as fhall lead men to piety to God, and all juft, peaceable, and kind difpofitions to- wards their fellows; that they may be inclined to e- very good oiEce, and faithful in every truft commit- ted to them in their feveral ftations. It is poor po- licy merely to punilli crimes when they are commit- ted. The noble art is to contrive fuch * previous e- ducation, inftruclion, and difcipline, as fhall prevent vice, reftrain thefe pafTions, and correal thefe con- fufed notions of great happinefs in vicious courfes, which enflave men to them. As pious difpofitions toward God, a firm perfuafion of his goodnefs, and of his providence governing the world, and admini- ftring juftice in a future ftate by rewarding juftice, temperance, and all focial difpofitions, and punifliing
* This was thc aim of the Inftitutions of Lycurgus, Solon, Phto, Isuma, and of thc old Perfians, according to Xenophon, and of the Chinefe.
Of Civil Laws, &c. 311
the contrar}^ are the fources of the moft fublimehap- Chap. 9. pinefs, fo they are the ftrongeft incitements to all^^-^"^^"^ focial, friendly and heroick offices. The civil power fhould take care that the people be well infl:ru6led in thefe points, and have all arguments prefented to their underftandings, and all rational inducements propof- ed which can raife thefe peifuafions, and confirm thefe difpofitions. Truth with equal advantages will always prevail againft error, where errors have not been root- ed by fuch early prejudices as prevent a fair examina- tion. The magiflrate fhould therefore provide pro- per inftruclion for all, efpecially for young minds, a- bout the exiftence, goodnefs, and providence of God, and all the focial duties of life, and the motives to them.
Every rational creature has a right to judge for it ^'° ""'""' felf in thefe matters: and as men muft aifent accord- ^/''»^«^ '/"■"• ing to the evidence that appears to them, and can- not command their own aflent in oppofition to it, this right is plainly unalienable: it cannot be matter of contra6l; nor can there be any right of compuhl- ons as to opinions, conveyed to or veiled in any ma- giflrate. He can have no right to extort mens fen- timents, or to inflicft penalties upon their not agree- ing to the opinions he thinks juft; as fuch penalties are no evidences to convince the judgment, and can only produce hypocrify; and are monilrous ufurpati- ons on the moll facred rights of all rational beings.
But as it is certain from the indolence, and the ne-'^^^ ^'^^n po^"--" cefTary avocations of multitudes, that fcarce one in/./;;.r iljfn^a.
crs for the pea-
qi2 Of Civih Laws
Book man hundred will ever exercife this right of private v-/W^judgmentvigoroufly; the far greater number, by ad- miration of fome favourite characters, will always fol- low fuch as make high pretenfions to fuperior wif- dom. It is therefore the interefl: of the magiftrate and his duty to the ftate in general to take care that wife and good men be provided and fupported to take the leading of fuch as will be led by fome per- fon or other. And by this means, if the magiftrates fcheme of religion be tolerable, he may always have a vaft majority to follow thefe leaders he has appoint- ed, and thus prevent the influence of dangerous en- thufiafts or roofues. It muft indeed be a vile unna-
o
tural pcrverfion of his office if he attempts a leading about ufelefs and difputable trifles, w^hich are of no moment to form in his fubje6ls difpofitions of piety, love and refignation to God, of temperance toward themfelves and juft and beneficent difpofitions to- ward their fellows. But it muft naturally belong to fuch as are vefted with power, and entrufted with ma- naging any funds for the general intereft of a people according to their prudence, to take care that fuch principles as lead to thefe moft ufeful virtues be fully explained and inojlcated upon their people. ^ut^-ithoutany All this may be done without any reftraint or pe- fcrjicuiion. j^^jj-^^g iuflictcd upou men for different fentiments; nay as men of different fentiments may think them- felves obliged to publifh them, and convince others ; the magiftrate can have no right to punifh any for publifhing their fencimentS; how falfe foever he may
and the ExEcvTio-^ of them. 31^
think them, if they are not hurtful to fociety. What- Chap. 9. ever whimfical men may introduce into their fchemes ^<>^^v^^v^ of religion, while they do not oppofe the goodnefs of the Prefiding Mind, and his moral providence exer- cifed over the world, or any of the principles of the moral and focial virtues, they do not oppofe the end of the magiftrate's office or the points about which his leading Ihould be employed. It is therefore un- juft, as no publick infereft requires it, that men fliould be punifhed for following their confciences in publiih- ing even thefe weak conceits which do no hurt to the ftate, and feem to them of importance. It has always been found, where there have been no reftraints upon men about fuch tenets, in free ftates, and where there has been a general toleration of them v/ith good na- ture; free converfation and argument have gradually abated the bigotry and hot zeal of weak men about fuch points^ and made more juft fentiments of religi- on generally prevail.
. II. As to direct Atheifm, or denial of a moral pro- "''fy-^'^? vidence, or of the obligations of the moral or fociar"^;'"^'^'" ■.'"■^- virtues, thefe indeed directly tend to hurt the flate m'-S^"k^ "^"' its moft im^portant interefts : and the perfons who di- rectly publilh fuch tenets cannot well pretend any o- bligation in confcience to do fo. The magittrate may therefore juftly rellrain them by force, as he might any deluded fool or enthufiafts who pretended con- fcience in invading the rights or properties of others. The magiftrate has a right to defend the Itate and Its members againft whatever hurts them, let the prc- VoL. IL R r
21^ O/'CiviL Laws
Book III. tences of the authors be what they will; and thus has ^-'"^^^^-^ a right to reftrain fuch as would by any fophiftry cor- rupt the weak into fentiments inconfiftent with their duty to their fellows, or fuch as are deflrudlive of the publick happincfs, by taking away the moft power- ful incitements to all good offices and reflraints from injury. But as there is little danger that fuch tenets will ever prevail in a civilized nation where knowledge and arts are encouraged, and as punilhments inflided by publick authority, befide moving the compafTion of men, fometimes give an air of importance to the filly ravings of an empty fool, and raife in the weak fome fufpicions of fuch ftrong reafons on that fide as no reafon on the other can anfwer; fome have look- ed upon it as a piece of prudence in magiflrates, where there is no manifefl danger of the fpreading of fuch opinions, to let them alone to the common fenfe of mankind to be confuted and defpifed: giving no truft to fuch men as renounce all bonds of confcience, but only punifliing when the principles are difcovered by wicked adlions. T^i:tmtdifc^ But as to various forms of external worfhip and ):^!;^r'""'^'' the different fchemes of religion, which yet retain the grand moral principles of duty toward God and our fellows, as there is no hope chat ever mankind, with their ftrangely different degrees of fagacity, and dif- ferent opportunities, and prejudices of education, will agree about them ; perfecution on thefe accounts muft be the greateit folly and cruelty. It muft go to fire, and fword, and gibbets; ocherways different fenti-
flf;;a?/^^ Execution of them, 515
ments will appear. Such perfecucion is the moft hor- Chap. 9. rid Iniquity and cruelty, and may often difpeople a^*-^'*'^^ country of its moft ufeful hands, upon which its wealth and ftrength depended. It is plainly the true intereft of a country on the contrary, to be a refuge to all induftrious peaceable men from neighbouring nati- ons, and to engage all fuch as we have already to re- main with us. Half perfecution does not conquer the diverfities of opinions, it only irritates mens minds and kindles feditions, or provokes them to fly to na- cions where they can find eafe.
As to the publiftiing of tenets everfive of the fo- Lnr,'.orai re^at cial virtues, or fuch as deftroy the ftrongeft motives ^'"'''^"'''■'^•*" CO them, or the holding fuch tenets as make men fcruple in their confciences to perform fuch civil or military duties as the magiftrate has a right to en- join; one muft allow that thefe matters fall under the magiftrate's power. That he may reftrain men from publifhing fuch tenets by penalties : and that he may either compell men to perform the necefTary duty to the ftate, or to make up the lofs by fupporting fuch as are willing to perform it in their places : as to this latter method there can be no queftion. But there have been fuch grofs abufes of this power of reftrain- ing men from publifhing the tenets which magiftrates have reputed dangerous, that it is no wonder many good men are unwilling to allow it: and would grant no more to belong to the magiftrate than a right to exclude men from all civil pov/er whofe tenets are oppofite to any focial duties, or everfive of the mo-
Rr 2
i6
Of Civil Laws
7k^- 7rc('t i'lcn^
Book Ill.tivcs to them, and to demand fecurity of their good 'behaviour; but to punidi only the pradices hurtful to fociety in confequence of thefe tenets; and that with as great feverity as the bad tendency of them may require.
The pofTible abufe of alleged right or power does
%\bip'wcr!'^'^^^ indeed prove that there is none. And yet the force of party prejudices, and the fury of religious contraverfies is amazing. Scarce any thing more odi- ous than the tenets which the feveral feds of Chrifti* ans charge upon their adverfaries, while yet any can- did mind muft fee the charge to be groundlefs againfl mofl: of them ; and that thefe tenets which have cauf- ed the higheft contentions and mutual perfecutions, lead to nothing everfive of true piety or the focial virtues. If in any cafe the frequent danger of abufe would make void a right, it would be in this of pu- niiliing for the publifhing of opinions everfive of piety and focial virtue; fince the warm zealots of all lides * have reprefented all fchemes of religion oppo* fite to their own, oppofite alfo to all goodnefs.
* All Calvinifls, fjy the zealot Armini- ans, are blafj-hemcrs, charging all injuitice and wickednefs upon God, and taking a- way the morality ofhunun acftions. The Calvlnifts in their turn make Arminians bUfphcmcrs and dcnycrs oi God's prtTci-' enceand providence, making men indepen- dent in tlieir actions. AlLVIaterialiftsareA- tln'ills.fay Tome warm Met3phyricians,tIio' feme primitive fathers were of that opini- on. Arians and Socinians, are idolaters and d^nyers of Ciod, fay tlic orthodox. They retort upon the orthodox that they
are Tritheifls ; and fo do other fecfls; and thus they fpirit up niaglrtratts to perfecute. While yet it is plain tliat in all thefe feds there arc the fame iriOiivcs fo all focial vir- tues ftom abeliefofa moral providence, the fame acknowledgments that the goodnefs of God is thcfource of all the good ^^e en- joy or hope for, and the {jtme gratitude and relignation toliim recorjipieaded. Nor do any of their fchemes excite men to vices, except that horrid tenet too can;mon tQ mn(l of them, the right of perfccuting.
and fhe'EjyLEcv Tioi; of them. 7ij
III. Where good inftrudlion is provided, the next Chap. 9. moft efFe^lual means for promoting all virtues publick ^^/"V^VJ and private is the example of thofe in fupreme power, nepror^oti.g and the preferring of virtuous men to all ftations and'^"'""-^"''''"'' offices of dignity, while the vicious are made contemp- tible. Elections either popular, or partly fuch, to tem- porary dignities and offices, promote a general huma- nity and juftice in the deportment of fuch as hope
to rife in the ftate. The controll of a prince and fe- nate upon the imprudence of a populace in eleffions^ would feem to anfwer all purpofes of policy; the po- pular affemblies of the feveral diftricls returninc>- fe- veral candidates for any office, out of which the prince and fenate might chufe one. Virtue ever was and will be popular, where men can vote freely. Where all dignities and places of power and profit are in the gift of a prince j a bad one may pervert this power to all mifchief : making them the conftant rewards of betraying the country, or miniflring to his ambi- tion, or meaner vices. In the hands of a good and wife prince any power is fafe.
IV. The virtues mofl neceflary to a flate next to nrt.esmeU;^ piety, \vhich excites to and confirms all the reft, are Jbbriety, indiiftry, juftice ^ ^i\d fortitude. By. fobricty we do not mean an abfrinency from all external plea-- fares or fplendour; but fuch moderate difpoficions tc-) ward them, as the nobler defires of virtue and of do- ing good- can always controll, when it is necefHiry fci any more important purpofe. Where fenfual plea- fures and a fplendid manner of living are keenly de-
afuiie, Sulrittj,
^j8 Of Civil Laws
Book III. fii'ed, rcputcd very honourable, and are the gmnd pur- (^/^^/-V^ fuics of men in power ; while a different manner of livino- by corrupt cuitom is made matter of contempt; all will be facriiiced for wealth as the means of thefe enjoyments. Men become needy and venal in allfla- tions , and the whole adminiftration grows corrupt. The interefts of the country fhall be facrificed to an ambitious prince at home, to foreign nations, or to any invader, by thofe very perfons who are entrulled to fupport them. induftry. Induftry is the natural mine of wealth, the fund of all ftores for exportation, by the furplus of which, beyond the value of what a nation imports, It muft increafe in wealth and power. Diligent agriculture muft furnifli the neceflaries of life, and the materials for all manufadlures : and all mechanick arts fliould be encouraged to prepare them for ufe and exporta- tion. Goods prepared for export Ihould generally be free from all burdens and taxes, and fo fhould the goods be which are neceffarily confumed by the arti- ficers, as much as pofTible; that no other country be able to underfelllike goods at a foreign market. Where one countr}^alone has certain materials, they may fafe- ly impofe duties upon them when exported ; but fuch moderate ones as fliall not prevent the confumption of them abroad.
If a people have not acquired an habit of induftry. ■hd} promoted, tiic chcapncfs of all the neceflaries of life rather in- courages floth. The beft remedy is to raife the de- mand for all neceflaries } not merely by premiums up^
and the Execution ofihem, 510
on exporting them, which is often ufeful too; but by Chap. 9. increafing the number of people who confume them:V^^^W; and when they are dear, more labour and application will be requifite in all trades and arts to procure them. Induftrious foreigners fhould therefore be invited to us, and all men of induftry fliould live with us unmo- lefted and eafy. Encouragement fhould be given to marriage, and to thofe who rear a numerous ofFsprino- to induftry. The unmarried fhould pay higher taxes as they are not at the charge of rearing new fubjedls to the ftate. Any foolifh notions of meannefs in me- chanick arts, as if they were unworthy of men of better families, fhould be borne down, and men of bet- ter condition as to birth or fortune eneaeed to be concerned m fuch occupations. Sloth fhould be pu- nifhed by temporary fervitude at leaft. Foreign ma- terials fhould be imported and even premiums given^, when neceflary, that all our own hands may be em- ployed; and that, by exporting them again manufac- tured, we may obtain from abroad the price of our labours. Foreign manufadures and produds ready for confumption, fhould be made dear to the confumer by high duties, if we cannot altogether prohibit the confumption ; that they may never be ufed by the low- er and more numerous orders of the people, whofe confumption would be far greater than thofe of the few who are wealthy. Navigation, or the carriage of goods foreign or domeftick, fhould be encouraged, as a gainful branch of bufinefs, furpaffing often ail the
.-,20 lyCiviL Laws
Book III pi'^^c made by the merchant. This too is a nurfery
^/V^vj of fit hands for defence at fea. xcitkcriuxr. 'Tis vain to alledge that luxury and intemperance
Z,ic7 iT.pry 3ire necelTary to the wealth of a (late as they encou-
/. /.^/:vt /"-« rage all labour and manufactures by making a great confumption. It is plain there is no neceflary vice in the confuming of the fined products, or the wearing of the deareft manufactures by perfons whofe fortunes can allow it confidently with all the duties of life. And what if men grew generally more frugal and ab- ftemious in fuch things ? more of thefe finer goods could be fent abroad: or if they could not, induftry and wealth might be equally promoted by the greater confumption of goods lefs chargeable : as he who faves by abating of his own expenfive fplendour could by generous offices to his friends, and by fome wife me- thods of charity to the poor, enable others to live fo much better, and make greater confumption than was made formerly by the luxury of one. Five families fupported in fober plenty may make vaftly greater confumption for every good purpofe, than one living in luxury. Younger children fettled well with proper fhares of a patrimony in fober plentiful families, may confume more than if an heir lived in all luxury, and the reft in indigence. And as to fobriety, it is gene- rally true that it makes the greateft confumption. It makes men healthy and long livers. It enables men to m.arry fcon and fupport numerous families. And iCQnfider even one alone : a fober plentiful confump-
3^(
A P. O.
Juftkc r,f
and the Execution of them,
tion for fixty or fevency years is greater than a rio- Ch. tous one often or twelve, and of fifty more in beegary. Unlefs therefore a nation can be found whe^e all men are already provided with all the neceffaries and con- veniencies of life abundantly, men may, without any luxury, make the very greateft confumption, by plen- tiful provifion for their children, by generofity and liberaUty to kinfmen and indigent men of worth, and by compairion to the diftrefles of the poor.
V. High principles of julHce univerfally prevailing in a nation are of great importance to the general happinefs ; not to mention the inward fatisfactions at- tending the difpofition, it creates univerfal eafe and fecurity, as it enfures to each one all his valuable rights and enjoyments, and gives the greateft encou- ragement to induflry, by enfuring to each one the fruits of his labours. Whereas a prevalent injuftice in the difpofitions of a people has all the contrary miferable eifects of animofities, wrath, fear, fufpici- on, and ruin, or grievous diftrefles to families; and as traders mufl: charge on their goods higher prices on account of all the ordinary lofles of trade, by bad debts, by delays of payment, and the expcnfive fuits they are forced to for obtaining it, the goods of fuch a nation mufl: come higher on thefe accounts to all markets, and be fold dearer at home, and thus the innocent fuffer for the guilty: and foreigners who have greater regards to juftice, are enabled to under- fell and en(>rofs the trade.
Every ilate mull have courts of juflicc and laws to ^«"--'^«/;V'^«
Vol. 11. S s
^22 Of Civih Laws
Book III. prevent fuch mifchlefs. Happy that people whofe v./^VN^laws are plain and intelligible to every honed man without the aid of thofe whofe fortunes depend on the intricacy of laws. It is impofhble to make fuch a fyftem of laws as fhall take in every polhble cafe in all its circumftances, and the imprudent attempt- ing it has occafioned that perplexity, and thofe end- lefs labyrinths of law, affording fo many artful and diflioneft evafions, which moft nations, who have con- tinued long without an entire change of polity, com- plain of as an unfufferable burden upon the property and tranfaclions of their people. F.aw.ui 7t'i.'/ jj. is plain that risiht and property are better pre-
e(o lei 'tnth a -T n r ^ 1 1 ' 11
prur.int plan oj fcrvcd by a very few limple laws leavmg much to the judges, provided there be a good plan for obtaining wife and difinterefted judges. The Romans in their beft ages had a large roll of * intelligent men in the law named by the praetor as judges for that year, when he entered on his office ; and out of thefe a fmall number were taken by lot for the decifion of each caufe: the party whofe caufe appeared juft was freed from all charges, and the whole expence was caft on the other fide, unlefs the judges determined that he had fuch plaufiblc pleas as might have deceived an honefl: man. Where it was not fo, further penalties and thefe very high were inflided for his unjuft li- tigioufnefs. The great men of eloquence in Rome pleaded gratis, as the lawyers alfo gave their opini-
* Thefe were \\-\t judices felcflt wlio for fome time ^vere to be all patricians, after- wards to beof thecqucurian order, and then of both orders.
•uiUuliivc.
and the Execution of them. ' 323
ons and direffions; and this was one of the natural Chap. 9. ways of obtaining popularity, and of fucceedino- in' elections. But what fhould hinder in any plan of po- lity, that out of fuch a roll the plaintiff and defen- dent might alfo each for himfelf chufe a patron or advocate, who lliould plead without fee from the cli- ent; and that he who pleaded the juft caufe fhould be payed by the ftate for his good fervice to a citizen. Protedion againft injury, and the obtaining of every juft claim without charge, feems naturally due from the governors of a community to its members ; fince they have refigned their natural rights into their hands. Judges and juries, to whom we truft our lives, could always determine whether the party who loft the caufe had any fuch plea as might have deceived an honeft man. Where he had not; the penalty for theft is not too high for a litigious profecution or defence, feverity on fuch crimes is mercy to all ho- neft men, who often fuffer more by them than by thefts and robberies, and that with more vexation. VI. Fortitude and military difcipline fliould alfo be as univerfal as pofTible. It is infamous to a coun-'""'-^" ""''"• try if men of the higheft ftations are not generally fitted for the moft honourable fervices, the defence of their country in times of danger. As war is a thing accidental, and defigns of conqueft are almoft always injurious, military fervice fliould not be a conftant profefTion to any; but the whole people ftiould be trained to it to be ready whenever juft occafions may require it; and during peace be kept in mind of their
S s 2
M't'iilari siiil
QTCiviL Laws
Book III difciplinc. All this is praaicable where the chief go- vj-v^^vernors allow it. In a war of twenty years, a nation which never maintained above forty thoufand foldiers at once, might fiifficiently train four times that num- ber, and make them all good veterans who had ferv- cd five or more campaigns, by making fuch a rota- tion that they never would have above one fifth of new levies incorporated into old regiments. By this too a fweet relief would be given to thofe who had fcrved the publick for a certain number of years, that they might return to indullry and the fweets of peace. ^^fcTf"/; Bv a rotation in the higher offices of command a t^t'o.sh.min- ' would be well provided in old officers and o-e- nerals, and not be m the milerable neceihty ot de- pending on one or two to command in chief, with- out any fit to fupply their places in cafe of death, or to oppofe them if they turned their arms againft their country. There would be a ftock of veterans at home to oppofe unexpected invafions, or to fupply an army at once upon any calamitous defeat. The youth of all orders, where there are more fons than one in a family, fhould be obliged to take their turns in fuch fervices, and after their term return to their domef- tick affairs. Such reputable virtuous citizens, many of them having valuable flakes in their country, would have both greater courage and fidelity than merce- naries for life, domeftick or foreign, chofen or offer- ing thcmfelves out of the refufe of a people, even fuch as were unfit for any other occupations. l.'!:!Ji grit' To fet fuch a fcbeme a-foot^ at firlt muff give a
htS.
and the Execution of them. ^25
confiderableavocatlonfrominduftry to a people which Chap. 9. formerly had employed mercenaries. But when it was V^'VX^ once fettled would give lefs obftruction to it than the other method. A fober virtuous people employed in arms for a few years, would in all little intervals of military fei-vice be exercifing fome induilrious arts, and would return to them with delight when their term expired. A thoufand kept idle for forty years, or for all their lives, is as great a lofs to manufac- tures or agriculture as five thoufand idle for eight years. Nor would military fervice for eight years cre- ate any fuch notions or habits as would prevent their returning joyfully to peaceful induftry, in men who knew their fixed term all along, and could have no views of fupport for life that way, and were chcfen from the beft of the people: efpecially if they were habituated well to labour in all intervals of military fervice, while they were fupported by the publick ; and that for fome publick benefit, fuch as in drainino- marfhes, cutting down woods, making roads and har- bours, fortifying cities, or making rivers navigable. Such labours, moderately impofed, would flrengthen: both their bodies and minds. Hlftory would convince all men that thefe fchemes are practicable. But other views than thofe of defending a country have recom- mended the ufe of mercenaries.
VII. Nothing can be more ruinous to a ftate than to i„i,p,ndtr.t) depend, in the exercife of any part of fuprcme power, u- ^'°^J'''[T^„y pon any foreign princes or courts, which may have vievv^s *""^- oppofite to its interefl. We muft not in this matter
^26 lyCiviLLA-ws
Book Ill.be deluded by names of offices. That perfon or court which levies taxes, decides contraverfies about pro- perty, or the conveyances of it, either during life or upon the event of death, impofes fines, or corporal punifliments, prohibits or commands the taking up of arms, determines or confirms civil rights to lands or revenues, decides the rights of princes, and judges of the obligations of fubjeds to obedience, and af- fumes to exempt them from it, that advances to pla- ces of profit and power, is certainly afluming and ex- crcifing the higheft fecular powers. The object of them are fecular and civil. And if the perfon or court a6l in their own name and not by delegated power from civil fovereigns, they a6l as civil fovereigns; be they popes, colleges of cardinals, high priefis and el- ders, convocations or aflcmblies of any kind: and let them inforce their fentences by what artifices they pleafe: if they derive not their power from the ftate, they affume a civil fovereignty. A prince or ftate which fubmits to them, gives up to them fo much of the fupreme power, and becomes fubje(5l to an inter- nal or external civil jurifdiclion.
If by any religious impoltures or bafc artifices of fupcrftition princes or dates have confented to fiich fubje6tion ; upon detecting the fraud they muft fee that they are no longer bound; as con trads obtained by fraud produce no obligation. And if any ftate has iliaken off fuch a fuperftitious yoke, and afferted its independency ; its governors cannot fubje(5l it again by any deed of theirs, more than they can alienate
ctnd /^^ E X E c u T r o N of them, 3 2 7
the ftate, or any part of the fupreme power, by fale Chap. 9. to a foreign prince with no fuch mock fpiritual titles. ^^^^''"^^ The changing of names is the common ftate-trick of all impoftors.
VIII. Things in all refpeds indifferent are not the n. momr =r proper matter of civil laws. It is capricious and un-''"'''""' juft to limit men by any laws about fuch matters. The bufinefs of civil laws is, i . To confirm the laws of nature by fecular penalties , and proper ways of profecution upon any violation of them. 2. To ap- point the beft forms and circumftances of all con- tra6ls, difpofitions, and commerce, fo that full proof may be had of the true deed and intention of the parties, and frauds be prevented. 3. They fhould di- rect a people in the beft way of ufing their rights, both for the publick and private good: limiting them to the molt prudent methods of agriculture, manufactures, and commerce. 4. Where fome good end is in view, and attainable by very different means, civil law fhould limit the beft means, where fuch limitations will not occafion fome other fuperior inconvenience. And where feveral forts of means are equally fit, and yet it is advantageous that a whole fociety agree in fome one fet of them, the civil law fliouldfix on this fet of them, tho' it be no better than fome others. And ic mufl in like manner determine more precifely what the law of nature orders with greater latitude.
Thus it is juft and proper that civil laws fix the pre- cife times for the meetings of courts or afTemblies for purpofes civil or religious ; inftitute exercifcs, ap-
^28 Of Civil. Laws
Book ITT. point prizes and premiums; fix the proportions, time, \^yvv^' and manner in which fubjeds Ihould contribute by their goods or fervices to the pubiick intereft; deter- mine a precife time when men fhould be admitted to manage their affairs as being come to maturity. In thefe and fuch like matters feveral different laws might have anfwered all good purpofes equally; but they cannot be left undetermined. Exunwi right j^^ From the very beft fyftem of civil laws ma-
a,:d UHJuft ad- ' ' , . T • r 1 J
v.vAagtt ».'H/?ny external rights may ante, and many advantages cfun ca owe .^^^ ^^ allowcd aud confirmed which no man can in- fill on with a good confcience: and * many vicious pra6lices go unpuniilied. Courts of juftice muft al- low time to both parties to produce their evidence, nor do they know before the trial which fide has the jull: caufe. Thus one who is confcioushe has no juft plea or defence muft be allowed time; and may caufe great expences and delays to the other party. Laws muft require certain formalities and witneffes as ne- ceffary to the validity of deeds that frauds may be prevented. Men may take advantage of fuch laws, and make void fuch difpofitions or teftaments as they w^ll know to be the real voluntary, and juft deed of the granter or teftator, upon defect of fome legal for- mality. If indeed there was any thing in fuch difpo- fitions or teftaments naturally unjuft or inhuman, or unreafonably partial to fome favourite, while others
• This is plain in cafes of ingratitnde ; want of piety, inhumanity toward the dif- trcffcJ, covetoufnefs, an.l fuch like. See B. ii. See aifo Bwbcyraque's two orations (ic lerufciii ct pen/iijjionc le^utn.
SanHLas oj rewards.
and the Execution of them. ->2o
who had equal or better claims are neglected, a man Chap. 9. may with a good confcience take the advantao-e the law gives him againft fuch deeds, provided he does of himfelf whatever is equitable toward others. But when the deed was juft and humane and equitable, and according to the power of the granter or tefta- tor, a good man would take no advantage of any in- formality, as he always muft carry in his own bread a more generous rule, a more candid meafure of con- dufi: than the civil law of his country.
X. The {Itnffions of laws are the rewards and pa- niiliments. Rewards have place in all civil laws as well as punifhments. There is one general reward un- derftood, the continuance of theprotedion of the flate and the enjoyments of the advantages of a civilized life. And in many laws there are other fpecial re- wards: fuch as premiums, and advancements to ho- nour, and to profitable offices, which alfo give oppor- tunities of honourable actions, which are to eood men
o
a fweet reward.
Efbeem or honour is either of t\\Gjtmpler kind, viz. ^^"""^ -'. the mere reputation of integrity and fuch difpofitions^'^'^'"'^'"' as fit a man for a fecial life; or that of diftinguifli- ed eminence y fuch as is due only to great abilities and fmgular fervices and virtues, or fuch at leaft as arc above the common rate. To the former, every one who has not forfeited it by fome crime of a more a- trocious nature than is readily incident to men in the main good, has a natural perfect right; fo it can be no matter of civil reward. The taking it away or ex-
VoL.II. Tt
^^Q Of Civil. Laws
Book lll.cluding onc from the rights attending it, may indeed be a fevere puniihment. The maglftrate has no more power over it than over the hves and properties of the people. He juftly may take any of them away for a crime deferving it, but not without a crime. Nor will the opinions of wife men follow an unjuft fen-
tence. 7htm.gifircu Qyj. jn^yard eftimation of the eminent kind will
ton determine ex- rid C \
urnai ko.uurs ^q^ foUow thc dccrcc or the itate or or the prince, ' "' "^ but the opinions we have of the merits of the perfon. The magiftrate indeed is the proper judge of any out- ward deference, precedence, or other marks of ho- nour; and his decree gives men an external right to claim them. While the magiftrate in this matter ge- nerally follows the real merit of perfons, honours may be very ufeful in a ftate. But when honours are con- ferred without merit, or continued hereditarily to thofe who are univerfally known to have degenerated from the virtues which procured them to the family, they become defpicable of themfelves, tho' the power at- tending them may be courted by the ambitious. Such conduct in any prince or ftate, in conferring or con- tinuing honours without merit, has a moft pernicious effed. Such a reverence and deference attends high titles in weak minds that thofe who enjoy them are often fcrecned from the juft refentments of a nation-: the moral fentiments of a people are weakened, when they fee the moft fcandalous vices adorned and at- tended by what ftiould naturally be always the reti- nue of eminent virtue.
and the Execution of them. -^ji
Hereditary honours have been conferred upon pre- Chap. 9. fumption that the pofterity of the eminently virtu- ^^-^"'O^
lj.|. ■' , , J Laujes i/J here-
ous, would either by nature, imitation, or good edu-'''''"'^*''"^"^ cation, prove eminent the fame way: and with a de- fign to make the rewards of eminent fervices more agreeable, as they conferred a dignity upon the de- fcendants of the virtuous. The expectation of fuch dignity may raife young minds to nobler views fuit- ed to their ftatlon. If a cenforial power, of degrading fuch as a6l unbecomingly to their dignity, be vigo- roufly cxercifed ; hereditaiy honours cannot be intire- ly condemned as ufelefs. The natural caufes of ho- nour or merit may be abundantly feen by what was faid above upon the degrees of virtue. But as they are made political rewards, they muft not be employ- ed in exa6l proportion to the degrees of moral good- nefs, but as they fhall moft encourage the virtues mofi: necelTary to the ftate.
X. The other fort of fan6lions are punifliments : J'^py"''^ the peculiar end of which is the deterring all from like vicious pracftices, and giving publick fecurity a- gainft others, as well as the offender. When this right of puniiliing which belonged to all in natural liberty, is conveyed in a civil ftate to the magiftrate, he obtains the fole right in all ordinary cafes, and has the dire6l power of life and death over criminals.
There is juft ground of diftinguifhing chajlifements ^t/^^^ir"!J from punilliments as they are folely intended for re- {'^'"' ^""'^'' forming the offender, and are not peculiar to magi- ftrates. They may be inflided privately; whereas j^//-
T t 2
^^o 'Of Civil Laws
Book wi.nijhments fhould be publick, and the crime intimated to all, that they may be deterred from it. Both thefe are diftincl from the compenfation of damage, " which refpeds the repairing any lofs fuftained by " another." And men are often obliged to it who had done nothing viciouJly or unjudly. * The violence ufed in war has alfo a different end, at leafl: fuch as is ufed before conqueft, to wit the defending or pro- fecuting our rights. What is done after a victory with a view to deter all, would have the nature of puniih- ment.
The true principle of heart which fhould excite a man in inflicfting any evils on his fellow-creatures fliould always be fome kind affe(5tion ; generally thofe of a more extenfive nature (liould influence the ma- giftrate in punilbments; and thofe of a lefs extenfive fliould move men in chaftifement, and compelling to compenfation. Nothing can make a good man's own- heart approve him in thefe fteps but a confcioufnefs that he acled from fome kind principle, and that fuch fteps were necciTary to fome fuperior good. Nay in juftifying the divine punilhments we have always re- courfe to like confiderations, which fliew that they flow from goodnefs; fuch as the fupporting the au- thority and enforcing the influence of his laws cal- culated for the highcll happinefs of his rational crea- tures, which muft be delirabk to perfect goodnefs it felf: as muft alfo the dcmonftracino; his love to vir-
• Thus authors dininj;uifli all thefe four, Pocji.iy Capgatio, Compenfatio, and ilio MrJii ^cUica from their difiVrtnt ends.
and the Execution of them. 333;
toe, and his fteddy purpofe of reftraining vice by the Chap. 9. mofl: powerful motives: and for thefe reafons we re- ^s^-'V^n^ pute the divine punifhments to be juft and good.
Since the end of punifhment is the general Mciy-^jJl^'/ZZl' the precife meafure of human punifhment is the ne->""'-^"""''- ceiTity of preventing certain crimes for the publick fafety, and not always the moral turpitude of the ac- tions; tho' this often is proportioned to the detriment arifmg from crimes. But as it is not always fo, fome of the worfl: vices muft go unpuniflied, as we faid a- bove; and fome a6lions very dangerous to the com- munity, and yet flowing from no great depravity of heart, muft be reftrained by great feverity: fuch as infurreclions againft a juft prince upon fome fpecious pretence of the preferable title of another. As the evils of civil wars are very great, men muftbe ftrong- ly deterred from entring rafnly into them. When- crimes arguing none of the great eft depravity are very inviting by hopes of fecrecy and impunity, the feve- rity of the puniihment upon thofe who are convicted muft by its terror over-ballance thefe allurements : thus theft muft be more feverely puniibed, even when men are induced to it by ibme ftraits of their fami- lies, than fome greater crimes flowing from worfe dif- pofitions.
Puniihments for the publick crimes in the abufeof power, or ufurpation of it contrary to law, ftiould hc-dK^jol pMck more fevere than for crimes of a more private na-'"""' ture, as the effects of the former are far more perni- cious. The ruin of fome ^^reat ftates has been owino-
,. 0/CiviL Laws
Book Ill.to too Hiuch lenity in puniftiing fuch crimes of ma-
i^/V-N^ giftrates *.
Severe punlfliments are neceflary too for fmall guile wheiifoever there is clanger of fuch frequent tranfgref- fions as might be deftrudive to a ftate in certain exi- o-encles. Thus the defertion of foldiers in a time of war, either from cowardice, or impatience for a peace- ful life with their families, muft be feverely punifhed. In times of peace this is Ms neceflary; and it is cruel without necefTity to detain chem long in a fervice o-rown difagreeable to them. ^mo.spv.-:ns^ jSJ^y fonie adions flowing from the beft difpofiti-
\nrpcitZsZ>j} Q^^ mufl: be flridly reftrained when the publick inte-
bcf.r„jhtd. ^^^ requires it. Thus an inferior officer of too keen valour may be punifhed fometimes juftly for a brave attempt contrary to the exprefs orders of his general: as the greateft confufion would arife if inferiors dif- obeycd exprefs orders of their fuperiors upon any ap- pearances of advantage to be obtained over the ene- my. As greater evils muft enfue from relaxing mi- litary difcipline, than can readily upon obedience to the imprudent commands of fuperiors, which are not plainly treacherous, and ruinous to an army; a good man may fee it to be his duty to obey fuch orders as he certainly knows to be imprudent, and to abilain from wife meafures which his fuperiors prohibit; un- lefs he can prevail upon them by reafoning to alter their orders. One who a6ls otherways muft be pu-
*" So.' Cicero Of. I. ii. c. 8. and Moyle's eflay on the Roman Government.
and /i5^ E X E c u T I o N of them, 5 r r
milled, as laws mufl regard the diftant efFecfts of ac- Chap. 9. tions upon the whole body. O^VX^
XII. Internal defigns not difcovered by a6lion, tho' j.temai j,-/;g,:s they could be proved, are feldom punifhcd in milder "'''^'"'^'"'''• governments. Men may projedl and talk of defigns, who are not wicked enough to execute them. When by exprefhng fuch intentions and defending them, they may have corrupted others, they may juftly be punijfhed; and the magiftrate may always juftly de- mand a fecurity for the good behaviour of fuch as have entertained them. When the defign is come to adion, and to fuch efforts as might have been fuc- cefsful, had they not been defeated by fuperior force or accident, the criminal deferves the fame punifli- ment, whether he fucceeds in his attempt or not, as the fame depravity is difcovered, and the fame dan- ger to fociety from his future attempts. Thus one who gave poifon, or who difcharged a gun at his neighbour with a defign on his life is to be punilhed : as a murderer be the event what it will.
It is proper that in every flate there fhould be a -'^po-^^erofdir- power of difpenfing with the fancflions as to oxdinMjfn.monsnac'jfa- crimes, when fingular reafons occur for it, and fuffi-'^' cient fecurity againfl like crimes can be otherways obtained. But for crimes of magiftrates againfl the publick rights of a people, or for grofs abufes of power, or attempts againfl the plan- of polity to en- creafe their own power or influence there fhojuld be no impunity.
The publick interefl may fometimes require the
^^5 0/^CiviL Laws
Book III. "-iving impunity, nay rewards, to fome who have been v^/^W; auiky of the word of private crimes, to employ them in fome neceflary fervices. Thus to break all faith in bands of robbers or pyrates, and deftroy all mutual confidence among them, pardons, and even rewards are iuftly given to fuch as betray the band, or deliver up any partners: as by fuch condu6l fuch confedera- cies a^-ainll: mankind are broken without efFufion of innocent blood; tho' the word of the party may moft readily take the advantage of betraying their partners, from thefe hopes. rhe undue ref. xill. That rcfpcB of pevfoTis, which is unjuft in yjimcnt. judgmcnt, confifts in regarding fuch circumltances ot them as neither afFe6l the guilt of the adion, nor its importance toward any publick detriment, nor the quantity of the fuffering. As when men are dijEFe- rently punifhed on account of kindred to the judge, of being zealous for his party or fadion civil or reli- gious, or of prior benefits conferred, or fervices pro- mifcd or expected; while yet the guilt and detriment to fociecy is equal. But circumftances fhewing great- er or lefs guilt, or rather greater or lefs tendency to the detriment of fociety, or fuch as encreafe or di- minlfh the fenfe of the punifhment, fhould be con- fidered as far as human courts can do it, to make the fentences well proportioned and juft. In pecuni- ary fines the fums exa6led from different perfons for the fame crimes or equal ones, fliould be in propor- tion to the wealth of the criminals.
The fum which is fevere upon the poor may be a
I.IC.QIS.
and tl?t l^W.cvrioyiofthem, ^-^7
trifle to the wealthy. In corporal puniflmients, the Chap. 9. weaknefs of the criminals fhould alleviate the punifli- ^^'W. ments: and infamous puniiliments fliould be lefTened as the fufferers are in greater dignities. For thus a- lone the fenfe of fuffering Ihall be equal for equal crimes.
It may juftly be queftioned however, whether in in- h.t./:;, .^^.,, creafing of punifhments on accounc of horridcrimes,^^'^^;';'; there be not a certain pitch of fufferino- beyond which -r^""'^""" nothmg ieverer Ihould be mflic'led. If death is the penalty of any deliberate murder or robbery, one s in- dignation would move him to inflict fomething worfe upon the more horridly cruel murderers, and to tor- ture fuch as had tortured others; or to ufe tortures where the gentler kinds of death inflicled feem fcarce fufficient to deter men from the crime. But on the other hand, horrid fpeclacles of torture, efpecially if they are frequently prefented, may have a very bad ef- fecft upon the minds of fpedators. They may harden their hearts, and abate the natural fenfe of compaf- iion by overftraining it, and make it lofe its force; as we fee in the overfl:rained fibres of the body. Be- fide the terrible efl:orts they may tempt wicked men to in their robberies, tofecure themfelves aeainil: con- viction, or to avenge themfelves for the fufferings of their fellows. We may find perhaps that nations where they are ufed have feldom fo tender feelines of humanity as thofe where they are not. And that an eafy death, with any fubfequent infamy upon the carcafe that -may affect fpc6tators, without cauling Vol. II. U u
^,o O/CiviL Laws
Book Tir. any real mifeiy to the criminal, may fufficiently an- ^^y^^"^^^ {\vcx the purpofes of human juftice. If tortures are
ever allowed, they muft be very rare. whoarciuiu XI \^ No man fliould be punilhed for the crime ■:,":r^''''''"of another; nor is any one liable to compenfatlon of damao-e who did not contribute to it by fome a6lion or omilFion contrary to his duty, nor Ihared in any pain by it, nor occafioned it by any contrivance or action deftined for his own advantage. As children are truly joint proprietors with their parents in the llock of the family; and have amoflfacred claim not only for maintenance, but a comfortable fubfiftence, upon that ftock as far as it will afford it, and the pa- rent bound to furnifli it out of this ftock: it feems plainly unjuft that the whole fhould be forfeited by the crime of a parent; not to mention alfo the juft and ftrong claim of the wife, even that of a fair pur- chafer by the fortune ftie brought, or by her own in- duftry in improving the common ftock. It is true the parent may be the natural adminiftrator, or manager for the company, and thus his debts contracted pru- dently or imprudently always aiFe6t it, nay his prodi- gality may fquander it all. But in many civiKzed na- tions, this natural joint right of the whole family is recognifed by the civil laws ; by allowing an inhibiti- on or interdicl upon an extravagant or imprudent pa- rent * at the fuit of the children or any proper perfon in their name. And this is plainly according to juf-
* Tlius the eftatc was res familians among the Romans; hence alfo ihtjus fuitatis in the chilJrcn.
and the Execution of them, tice and natural equity. It Is fcarce therefore defen- cible with any fhadow of juftice, that civil laws ihould appoint a puniihment on the guilty which equally or more feverely affects the innocent.
XV~. As to the punifhment of corporations, the r^,;„„,^w„. following maxims feem juft. i. If all the o-uilty//"^/"^-"'"'^'- or as many of them as are fufficient for compenfa- tion of damage and a publick example, are found, nothing can be further demanded from the corpo- ration.
2. When this cannot be obtained, no innocent man fhould be punifhed in his perfon or any private fortune of his he holds independently of the corpo- ration,, for any crime of its magiftrates or other citi- zens.
3. As merit and demerit are perfonal and not properly refiding in corporations ; if all the crimi- nals are dead or banillied out of it, no punifhments can be juflly infli6led on it or its members. Punilli- mcnts or fines exacted out of the publick ftock have not the proper effect intended. Bad men feel and are deterred only by what fliall afFecl themfelves. They are not moved by the fufferings of communities,
4. As to compenfation of damages; when it can- not be obtained from the criminals, it next falls upon any in power who by grofly culpable negligence fliar- ed in the guilt, and it fhould be levied out of their private fortunes. If thefe fail, the common ftock of the corporation is liable, and where this fails it may be exa-fted out of the private fortunes of its mem-
Uu 2
^.Q Of Civil Laws
Boov III bcrs; for the fame reafons alleged above * in the cafe of conquefl: in a juft war.
5. As corporations have generally fufficient power CO reftraln thcu* members from injuries, the gover- nors lliould be obliged to give fufficient fecurity a- (rainfl: future injuries, and Ihould be Y^{)itd with fur- ther powers if the former were not fufficient. Nay they may be diverted of any fuch privileges as are apt CO be abufed, when no other fufficient fecurity can be obtained againft their being abufed to the detri- ment of the publick. But without fome great necef- fity, or when other fecurities can be obtained, it is ve- ry unjuft to deprive a large innocent body of men of any privilege of importance to them upon the crime of a few, or even of their magiftrates.
6. As to any rights which fmaller corporations en- joy as parts of a great body politick and with rela- tion to it, fuch as a right of reprefentation in the fupreme council ; no mal-adminiftration of even the magiftrates or councils of fuch corporation fhould forfeit a right of importance not only to all the in- nocent members, but to the whole ftate.
7. Bodies incorporated merely for trade and for the benefit of a few partners, may f juftly be depriv- ed of their privileges upon their non-compliance with the terms or conditions upon which they were grant- ed. And the corporation may be diffolved.
XVI. As to taxes for defraying the publick expences.
n^h.it taxes or trlf-uUi Di'jji tl's-
* Seealovech. viii. art. 5. of this book.
t This is A poena conver.tional'n, dillind from the proper poe7ia univerfitath.
and the Execution of them. 3AI
thefe are mod convenient which are laid on matters Chap. 9. of luxury and fplendour, rather than the neceffiries'^-^^V'"'^ of life; on foreign products and manufactures, rather than domeftick; and fuch as can be eafily raifed with- out many expenfive offices for collecting them. But above all, a juil proportion to the wealth of people fhould be obferved in whatever is raifed from them, otherways than by duties upon foreign products and manufa6tures, for fuch duties are often neceflary to encourage induftry at home, tho' there were no pub- lick expences.
This proportion can never be obferved without a '^^^ s'-f^f ^fi cenfus or an eftimation made of all the wealth of pri- vate families at frequently recurring periods, once in five, fix, or feven years. How practicable this is, may be feen by the Roman laws. It would detect perhaps a few broken merchants and men of bufinefs, and both turn them out of trade and prevent their op- portunities of defrauding more creditors ; and this is all the harm it would occafion. For men of prudence and good conduct, v/hofe fl:oGks were loft by accidents, they would ftill be trufted by their friends : and yet incautious rafh projecftors, without any fund for their bufinefs, would lofe opportunities of fraudulent bank- ruptcies, and of many injuries now too common.
By a cenfus all would be burdened proportional- ly to their wealth; and thus the publick expences be oppreffive to none beyond his neighbours. In land- taxes, gentlemen in debt are immoderately opprefied, beyond thofe of clear eftates ; apd moneyed men con-
5^2 O/CiviL Laws
Book TIT. tribute nothing. Duties and exclfes, however the
i^XVN^ merchant or other wealthy trader firft advances them,
yet are at laft paid by the confumer. The hofpitable
generous men, or fuch as have numerous famihes fup-
ported genteely, bear the chief burden here, and the
Iblitary fordid mifer bears Httle or no fhare of it.
chdknu aHivc X VII. To thcfc Hghts of governors correfpond
cr /./;.. ^j^^ obhgations on fubje^ls to obedience a6i:ive or paf-
five, as we fhall fhew more particularly in a few ob-
fervations.
I . When the command of a governor is truly juft and wife, and within the power committed to him by the conftitution ; afubje6t is always bound to obey not- withftanding of any private inconveniencies or danger to himfelf ; and that even in confcience, tho' he could artfully evade the penalties of the law. This holds particularly in paying of taxes and in military fervice. obng.thHs to 2. When the matter commanded is within the
obey imprudent 'j i "L^l.'/'l*
a,uma/ds. powcr committcd to the governor, but he is ulmg his power imprudently in commanding it; if modeflre- prefentations will not move him to change his orders, and they are only burdenfome and dangerous to us in particular and not contrary to any perfect right of the innocent, or injurious to others, it is our duty to obey, tho' the governors finned in commanding. In war the commander may often be very guilty in impru-r dent orders given, and inferiors may fee that they are not only dangerous to themfelves who execute them, but even prejudicial in a fmall degree to the publick caufe. But as diflblving all military difcipline muil
and the Execution of them. ^.j^j
be a much greater evil to a nation than the lofs that Chap. 9. can be readily fuftained by executing the imprudent '^"'^^^'''^^ orders ; and all difcipline muft be lolt where the infe- rior afTumes tohimfelf to difobey orders he judges im- prudent; it is often the duty of inferiors to execute them while they judge them imprudent.
If the orders are iudo-ed treacherous, or fo perni- Jrhaithymay cious that the execution or them w^ould be more de- flructive than breakino- throueh in this cafe the rules of difcipline, a good man w^ould difobey, and take his hazard. It is in like manner our duty to pay taxes or tributes, tho' we judge that they are unequally im- pofed, and to be applied to imprudent purpofes, when they are impofed by that perfon or council to whom that power is committed. There are many commands, civil and military, about the prudence or juftice of which inferiors are not proper judges, w^anting accefs to the reafons of them. Upon prefumption of the wifdom and juftice of their governors, they may a6i: innocently and virtuoufly, when their fuperiors are ve- ry criminal ; and they often owe fuch obedience to the general intereft of their country, v/hen they know that the orders are imprudent.
3. But if a fubject is perfuaded of the injuftice of a war, or of a fentence he is commanded to execute in confequence of an iniquitous law, he ftiould refufe active obedience, and bear patiently for a good con- fcience the fufferings he may be expofed to.
XVIII. But when a governor exceeds the ^o\\tn .^JL^'ugd vefted in him by the conftitution, affuminn; fuch as-^'""'.'-;"/*'^'"
J ' O dice IS due.
344 Of Civih Laws
BooKlII.arc not granted to him; unkfs ir be in cafes of fin- v^/^V^^ o-ular neceffity, it is always juft and honourable to op- pofe fuch ufurpation of power on its iirft appearance, whatever fpecious pretences are made for it of good defigns and intentions ; as the precedent is dangerous, and will readily be followed in worfe cafes, to thefub- verfion of the conftitution, and all rights eftablifhed by it,
2. Suppofe che governor does not exceed the le- l^al powers vefted in him, but is abufmg fome immo- derate powers granted him in an imprudent plan of polity to purpofes everfive of the publick fafcty and liberty; fubje(5ls may juftly refufe obedience, and by a joint reliftance oblige him to confent to fuch limi- tations and reftrictions as are neceilary for the com- mon fafety, a private man, when he has no hopes of a fufficient concurrence of others, mufi: fly from op- prefTion or refift it as he can. It would be wrong, with- out hopes of fuccefs , to involve himfelf and a few friends to no purpofe in greater mifchiefs, or to obey commands injurious to others. Triv^u \nju. 1^. Suppofe the plan of polity good, and a prince 7rT«^''y"wn'c alfo in the main faithful to his high truft, but pofTef- hrnc fathntij. ^^^ wlth fomc grounolcfs prejudice or violent ano-er againft any private fubjeft, and aiming at his deflruc- tion without any juil caufe : no man can innocently obey his unjuft orders in deftroying an innocent man, and one fliould fuffer rather than execute them. The innocent perfon thus intended for deftru^lion would have a right to all violent methods of defence, even
:nc( oftCii
and the Execution of them, ^^45
againft the prince in perfon, were he only to regard Chap. 9, the right of the prince againft him ; but for the fake '--^ of his country, not to deprive it of a prince in the main good, or expofe it to any great evils which might en- fue upon his death; it may be the duty of the fub- jecl to fly rather than ufe violence, or to be a mar- tyr for his country's intereft, when he cannot efcape by flight.
But to fay that in no cafe men have a rieht of re- ^'^^"' fiftance, or that in no cafe they can afTume to them- felves to judge, of the commands of their fuperiors, is mcnftrous. All ends of government, all fafety, all important rights of a people would be precarious, and be loft without redrefs, as foon as fupreme power came into wicked hands. They who cannot judge of the juftice of commands given, can furely as little judge of titles to fupreme power. This doclrine there- fore muft for ever eftablilli every ufurper who once gets into pofl^eiTion. A wicked prince or ufurper, a fenate, or a few Democratick deputies once in pof- felFion are for ever fecure: upon their orders, which none muft afliime to queftion or judge about, their foldiers might rob, pillage or maflacre any whom they fufpe61ed; nor could there be any redrefs.
4. As to perfons condemned to punilhmcnt ac-^'^''''^'";'^^''- cording to juft laws, they feem obliged to bear it, and ' owe to the publick that reparation of the mifchief done by their example. Their declining it by artful contrivances to make an efcape is fcarce juftifyable, tho' it is generally excufed on account of the great-
VOL.II. Xx
•k>niit('.
>..(5 0/^ Civil Laws, &c.
Book Ill.nefs of the temptation. As the fociety has a right to punilh, they can have none to refift by violence. Nor is it lawful to tempt any officers of juiHce by bribes to be unfaithful in their truft, or to ufe violence a- gainft them.
cfihrcr.jujiiy r. One condemned upon an uniuft law or falfe ac- cufation feems to have a right to make his elcape by any methods which are not injurious to the innocent. Nay as one may have a right of felf-defence, or of defending an innocent man by violence againfl any afrereffor, tho' the aoiOirefTor was in an invincible error, and fo innocent too: in fome cafes the like may be juft in an innocent man, or in his friends againftfome inferior officers of juftice, w^hen all the detriment a- rifina from fuch efforts ihall be a far lefs evil than the execution of the unjuft fentence upon the inno- cent, and eminently worthy.
The cafe is much more obvioufly favourable where the laws are notorioufly unjufl and opprefTive toward great numbers; or plain uiurpations upon the natu- ral and unalienable rights of all rational beings. Such are all thofe which invade the rights of confcience by perfccution for innocent religious opinions. Had one fufficient force by the concurrence of others, he would have a right to compell the legillator by force to re- fcind fuch unjuft decrees. Much more muft he have a right to defend himfelf againfl: their tyranny in tJiis point by any violence againft the execution of fuch laws when he has probability of fuccefs.
Thus the general duties of magillratcs and fub-
The Laws ^Peace and^AR. -,,7
je(?ts are difcoverable from the nature of the truftcnAP. 10. committed to them, and the end of all civil power. ^v./'^VX^ Political prudence to exercife the rights vefted in magiftrates wifely according to the feveral exio-encies of publick affairs, is a mod important part of hu- man knowledge, and muft be acquired by much ob- fervation, and experience in political aifairs, by know- ledge of the interefts and conftitutions of neighbour- ing ftates, by civil hiftory, and political writings.
CHAP. X.
The Laws <?/"Peace and War.
I- \/\/-^^ ^s the ftate of thofe who by violence 1.^.../..^ > ^ defend or profecute their rights: and as fo-^rftJ'; vereign princes and ftates are in refpecT: of each other '"''''''''"'''• in natural liberty, the whole do6lrine * above deliver- ed, about the violent defence and profecution of rights, belongs alfo to the wars of ftates, and the juft terms of peace among them.
Wars are either private or puhlick, the former are ^''''' ^"^^'''' thole ot private men in their own names ; pimtck are'''"" «'- «• >- " thofe wars undertaken by the authority of a ftate'""* ^' or its fupreme governor on one fide at leaft." When ^' a war is undertaken by the authority of fovereign '' ftates on both fides," it is called a folemn war, and a fort of f external juftice is attributed to it on both
* B. ii. c. I 5. § 5. f See Grot. 1. i. c. 3. § 4. ihus ju/ft/?» et purta?i ducUtwi is
afcribed to both Cdes, tho' other wars are as lawful. Sojujiaenuptiae are not the fafc lawful marriages.
Xx 2
^ ^8 ^^^ Laavs o/'War.
Bo - III fides by the cuftoms of nations; not that there can v^^V^^be true JLiftlce upon both fides; or, as if all other wars were morally unjuft. To this bcllum fokmjie Grotius and his followers require alfo a previous in- diction or declaration, after juft reparation of wrongs or the fulfilling our juft claims has been demanded and refufed, according to the old foecial law of the Romans. But whatever may be faid of the previous demanding our right, which indeed feems neceffary on the offenfive fide, if their affairs can allow it, there is no fuch neceffity after a juft demand has been made and refufed, that there Ihould be a * pre- vious declaration of war. It is never expeded on the defenfive fide, nor is it always fafe to the other, as it may give time to the enemy, and prevent the beft opportunity a nation may have of doing itfclf juftice. Nor has any fuch univerfal cuftom obtained even a- mono: the more civilized. citu^^t.n:,:/ Publick wars but not folemn, are thofe when ma- ''"^'^"■''"■' giftrates quell feditions and tumults; when two great factions in a ftace upon fome debated point of pub- lick right have recourfe to arms. Sometimes one fide having the fupreme governor's authority, as in Mo- narchies; and fometimcs neither; as when one half of a fenate or popular aflembly makes war with the o- ther. Thefe are called alfo civil wars; and in many cafes there is as much reafon pleading for favour, and all humane treatment in thefe civil wars, from each
* Sec Bynkerfhoek ^left. Juris Pull. i. 2.
reLt'ing to the
pirtics.
The'LA^vsofW^R. ^^9
other and from all other nations, as there can be for Chap. io. both fides in any folemn wars ; as both fides may have O^V~V^ as fpecious reafons or pleas of juftice, as can be found on both fides in the wars between fovereien fiates : which muft appear from the many cafes in which re- fiftance to governors may be lawful ; of this here- after.
II. The laws of war relate cither to the rights or Laws of war obligations on the contending parties toward each o- ther, or toward neutral ftates who are at peace with both the parties; of thefe in order.
There is one duty incumbent on both with refpecb to each other, and to all mankind around, that when they cannot give previous declarations, they fliould however give fubfequent ones, explaining their claims and the grounds of them. The defenfive fide is ob- liged as much as the other to make known their de- fences and exceptions againfl: the demands of the ag- greffor. Such declarations are the natural means of letting each other and all the world know, that nei- ther of them are ufing violence, with the fpirits of py- rates or robbers, without regard to right and juftice;: and they preclude all prefumption of their renoun- cing: the law of nature, or forfeitino; the common rights of mankind, if indeed their declarations con- tain any fpecious pleas or allegations founded in fact ;. where it is fo, the body of the people on both fides may be innocent in deeming their caufes to be juit; nor fhould thofe who bear arms on either fide be re- puted infamous, or enemies to mankind: as they ac-
-yro The L. AW s of War.
Book in. ted Under the authority of civil governors, and by
vyv^-^chelr orders, upon fair prefumptions of juftice.
ta.jv^""/'^ I^^- I^^ the wars of ftates, as in thofe of individuals^
"{rl'^r^'' ^ve may confider the caufes, the time of comaience-
mcnt, and the term to which they may be continued,
and the lawful methods of carrying them on.
1 . The ordinary jufi: caufes are fome violations of perfe6i: rights. Our neighbour's innocent increafe of wealth or power does not juftify our invading him, tho' it {liould roufe our caution and diligence to encreafe
cr>,fi>ar(ri Jan- our own wcalth and power, and to form alliances. If ^cr of teem. ^^^ ncighbour indeed appears to be preparing himfelf for hoftiUties and conqueft, tho' he has not yet com- mitted any injuries; if he is polleiled of any fmgular advantages by iituation, or other caufes, that ftates a- round him cannot be fecured but byfuch continual ex- pences of armies or garrifons as they cannot bear; they may have a right to infift upon fomething more than verbal fecurities againft injuries, and compel the afpir- ing ftate to give it, by furrendering frontier-forts, or demolilbing them, or by quitting fome other part of their ftrength.
2. As among the members of a free ftate there may be potent reafons for preventing fuch immode- rate acquifitions of a few, tho' made by innocent means, as may be dangerous to the whole body, there are the like reafons why neighbouring ftates ihould infift on. proper fecurities for their fafety from any one w hich is exceedingly increafing in power, or they may put a ftop to its increafe by force. But this is like the
The Laws of War. . J5r
extraordinary rights of necefllty, which dates cannot Chap, ic have recourfe to, if by induftry, good difciplinc, or '^^^'^^'''''^^ any other inoffenfive methods, they can preferve a pro- per ballance of power againft their afpiring neighbour. An abfolute neceifity too in fome cafes may juftify the ufe of force in demanding what cannot ordinarily be claimed as matter of perfe6l right "'^.
3. As men in natural liberty have a perfect right Defence of o- to afTift any neighbour againft injury, fo have foreign 't"/"^"'""^ "" flates to affift any one that is unjuftly attacked, or that has not force enough to compell an injurious neigh- bour to fulfil its jull; claims. Nay it is the duty and intereft of all around to give this alTiftance; as the like injuries may be done to others, if the injurious ftate is allowed to enjoy its prey. This is more efpcci- ally their interefl: when ambitious defigns of conquefl appear, tho' they are not yet turned toward ourfelves.
IV. The time when hoftilities may juftly commence nejujicom^ is aflbon as an injurious ftate has Ihewed the hoftile^^'^J^Jj;;.;;^ or injurious defign, by violating any perfect right of ours, and refufmg reparation when demanded, or de- nying to perform v/hat we juftly claim fromx it. It is juft, as well as prudent, to prevent an enemy, and make his country the feat of the war ; nor are we bound to ftay till we are invaded.
* It is thus that Grot'ius defends the wars made by the Ifraelites upon fon;e na- tions \vh;cli rcfufed them a palFage through their cou:\try upon the faireft offers of peace, and of abltaining from all injury. And yet no nation, without abfolute ne- cf fTity, has a perfed right to claim this
allowance. An army In the heart of a coun-- try may be mafter of it, unlefs a HiperJoc army be raifed in its defence ; the other hoflile party will infiH. on the like vght, and thus the neutral ftate may be made the feat of the war,
The Laavs o/Wak.
The term to which violence may be juftly con- tinued, is till the danger be repelled, all injuries and expenccs of war compenfated, and every thing paid and performed which we had a perfect right to claim, and fecurity obtained againft like offences or injuries for the future. To continue violence, after all thefe are obtained or offered, is manifeflly unjufl, as it is cruel toward the conquered ; and is fo far from being ufeful to mankind, that it is highly pernicious, as was fliown above about conquefts. F^rrc /«««- Y, The moft undifputable method of making war
oAuarring. IS by opcn forcc and violence agamlt luch as oppole us by violence; and this is naturally juft, as far as it is requifite to obtain our right, or to diflrefs the ene- my fo as he fhall confent to juft terms. Such violence or cruelty as is not naturally fubfervient to this pur- pofe, or without which we could obtain our right ef- fcdually, and at no greater expence to ourfelves, is truly unjuft and deteftable. Such is the murdering of hoftages or captives in cold blood, and all barbari- ties toward women and children. Nay, granting that by fuch barbarities an enemy might fooner be moved to agree to juft terms, yet they are naturally unjuft toward innocents; and are horrid precedents, which may be turned againft ourfelves, or thofe in the juft- eft caufe. By uicit ««- Many civilized nations, by a long cuftom, v*^hich
ffrh^red.ded. Iccm to import a tacit convention, have agreed to ab- ihiin from fome dark methods of deftru6tion, fuch as poifoning fountains which fupply an hoftile camp,
77;^ Laws q/' War. 553
ufing poifoned arms to make all wounds mortal, and Chap to. fome few others. As the cuftoms are humane, it is ^^^/'""'^ vicious and diihonourable to depart from them while the enemy is willing to obfcrve them ; as departing from them niay incrcafe mifchiefs further than is ne- ceflfary ior the purpofes of war, by deftroying women, or children, or perfons wounded, who however could have been of no fervice againft us ; and our enemy may gain as much by fuch artifices as we can. As to af- faffinating of hoitile princes or generals, there is no cuftom of nations excluding it, providing it be not done by the corrupting of fubjeds, or fuch as are un- der bonds of fidelity, againft their matters. It has of- ten been praftifed by civilized nations againft any ho- ftile prince or general, and not condemned. But the bxibixig a fubjedl to affafTmate his own prince, or a foi- dier his own officer, is generally condemned.
It is to be exceedinply rec^reted that while fome some lomi pra6lices not lo very pernicious leem to be generally much vuugei condemned and counted infamous methods of war, ^-^ '"•/'""• yet a general cuftom has given impunity to fome of the moft horrid barbarities committed againft ene- mies. No perfon is punilhed, or counted infamous in his own country, for murders of cold blood, rapes, butchering of women and children, or any cruelties committed againft an enemy during a war. Nay fliould he fall into the enemies hands, he is not profeouted for thefe crimes, as the enemy is reftrained by fear of reprifals. There is all reafon indeed to excufe great cruelties done in the heat of adion, which a cool fpec-
VoL. II. Yy
^r^ The La-\vs o/War.
Book Ill.tator may fee to be unneceflary. This indulgence v./vx^ may be given to human weaknefs amidfl: fear and dan- gers. But for barbarities unneceiTarily committed a- o-ainfl: enemies, when there was no prefent danger, and in cold blood, it would be honourable, and but a piece of juftice in every nation, to inflicfl the fevereft pu- nilhments on their own fubjects for fuch crimes, and to hear in their courts of juftice the complaints of their enemies ao-ainft them. m-^fjT fraud VI. There is fome debate how far frauds arelaw- 'liil^r'"'"''" ful in war, and here it is plain that deceiving our ene- mies, when we have a juft caufe of war, by any fuch figns as import no profefTion of communicating our fentiments to them are ftratagems univerfally jufti- fied. Nay, the cuftom is much received of deceiving enemies even by other figns, fuch as import this pro- feillon when ufed to a friend. Falfe narrations are generally pracSlifed whenever there is any hope of be- ing believed ; and men are not blamed as falfe or per- fidious on this account by thofe who manage the pub- lick affairs of nations. One may allege, that this cuftom, univerfally received, is a tacit remiffion of the right which othcrways enemies would have to each others veracity in narrations. But it muft ever be a difagreeable method to a candid mind, efpecially if joined to any profeffions of friendlhlp. \o,uccptioniy Aud as to all forms of contra6i:s, truces, or trea- ^j'jijkd'"" 'ties, the cuftom never was, nor ever can be received of deceiving an enemy by them ; and fuch frauds ever will be deemed, as they truly are, highly criminal and
77;^ Laws o/' War. 355
perfidious. Treaties are the only humane way by Chap. 10. which wars can be brought to an end and peace re-»«../^VX>' ftored, without the entire flaughter or deftruclion of one fide; and breach of faith in them mull take away all their ufe for the moft falutary purpofes to nations. There is a like obligation on enemies to obferve all promifes of fafe condu6i: or palTports given^ that good men may be fecured of the humanity due to them by all, and which is perfectly conliitent with the moil vigorous profecution of the war.
VII. How the private fortunes of fubjecls are li- tu jujikt ./ able to the claims of compenfation of damage done"'^""^"^'' by their ftate, and the foundations of the right of re- prifals, were explained upon the fubjecl of conquefts. We only obferve here, i . That every flate is bound to reftrain its own fubj e6ls from inj uring any neighbouring ftate, or any of its fubj eels. 2. When fuch injuries are done openly, and no redrefs made by the gover- nors of fuch injurious fubjecls, upon complaints made, this is always deemed a juft caufe of war; unlefs the governor fhew that fuch fubjecls have fliook off their allegiance, and are no longer amenable to their laws, and that they give them no protection; for no flace is accountable for the depredations made by bands of py- rates who once were their fubjects. 3. As fubjecls are bound to compenfate damages done by their gover- nors ; when the injured cannot otherways obtain com- penfation, it is juft that the injured flate take the compenfation due to it or its fubjecls in the eafieft way it can, and if that is by feizing the goods of the
Yy 2
^r^ The Laws of War.
Book iiT.fubjecfls of the injurious ftate, let them have recourfe y^y^\^\j CO their governors, for compenfation of what they fuf-
fer through their injuftice on a pubUck account. whn tie cap. Thc cuftom is generally received, that moveable *^^'"""'^'' 'aoods taken in war, and removed into the enemies forts, or carried to their fleets, and adjudged as le- gal prizes, are deemed the property, partly of the captors, partly of the ftate to which the captors are fubjecfl:, according as their civil laws determine. And this change of property is acknowledged even in the ftate from which chcy were taken; fo that if they are retaken, the old proprietor is deemed to have no claim; they belong partly to the captor, partly to the ftate, as civil laws appoint. This is a matter of arbitrary or pofitive appointment, with a view to encourage fub- jects on both fides to greater activity in depredations on the enemy. ^'^^'."^a-n!' VIII. We come next to confider the laws of thcncutra}Jhu.^f^2iX whicli rcfpcdi: neutral powers; and as there are a great variety of cuftoms received in this matter, we fhall only briefly mention the general principles and maxims by which the chief queftions may be folved. This head makes one great part of what is called the * publick Law of Nations ; fome parts of which are obligatory as parts of the Law of Nature, and others
* It is neediefs to run into logoma- chies, whether there be any Laiv of Nat i' om diftindl from the Laiv of Nature. One may perhaps divide the Law of Nature in- to two parts, xhc private and puhlick, the former about the rights and duties of in- dividuals, the latter about thofeof ftutcs.
The publick, or the La'iV of Nations ^mzy be fubJividcd into the ahfolute ot prima- ry, containing the rules founded en na- tural reafon, and obligatory previous to agreements ; and the fccoridary or hjpo' ih(tical, founded on cullom and tacit con- vention.
The Laws of^AKi 357
as matter of agreement or tacit convention, and very Chap. 10. changeable.
The laws of war, with refpeft to neutral ftates, de- pend chiefly on thefe few maxims.
I. No neutral ftate fhould be obliged, without k,,j^lSto Z inclines to it, to declare for either of the contending;^;;' "" ''"^" parties, or to favour either in the war, and thus ex- pofe itfelf to the hoftilities of the other. There may be a ftrong obligation of duty, or gratitude, or finer juftice; but, where there has been no exprefs engage- ment by contract or treaty, a neutral flace muft be at liberty to a(5l as it pleafes and may continue its neu- trality. The fame holds as to the two contending parties in a civil war; a ftate formerly in friendHiip with this divided country is not obliged to declare for, or recognife, the juftice of the caufe of either. Nor is it to be deemed any breach of friendftiip by the fide which proves vi6lorious, that the foreign ftate o-ave no aid to it while the victory was doubtful, pro- vided that it afted the fame part toward the other.
In confequence of this a certain external right ^^.J^'^';^;;^
iken ill 'Mar, i
ever allowed to be acquired by the captors to all move-/^
. Ti«l«i J ' 1 r a full prs^erlj,
ables taken m war; and the title is deemed mdctea- fible if thefe goods are purchafed by a neutral ftate or its fubj efts, fo that they can never be reclaimed out of their hands by the old proprietors ; nor is ic deemed a departure from the neutrahty that they buy fuch goods taken on either fide as once were adjudg- ed as prizes. The purchafer may not know how the goods were acquired. If they were to be reclaimed
grg The Laws of War*
Book III. by the old proprietors, and delivered to them; the ^/V'>^ neutral ftace would thus declare that the feizure was unjufl and mull lofe the price payed, or declare war upon the captors. If they refufed the demand of the old proprietor, while he was allowed to infill: on his old right, this would be declaring againd: him and his country. Nay if fpoils are fold to other fubjeds of the fame ftate from which they were taken, either by the neutral purchafer, or by the enemy, (as trade is fometimes allowed by treaty during hoililities ;) out of favour to the fair purchafer, as well as to the ex- ternal right of the captor, the old proprietor cannot claim them. Were it otherways, all trade would be precarious either with the enemy or neutral ftates. Kofuch right j3^^ ^g ^Q lands, cities, or provinces taken, as no
es to lands vio- ' -^ ^ ■«• ^■'
hnth^ojifcd. purchafer can be prefumed ignorant how the feller acquired them, there is no fhadow of reafon for al- lowing fuch a right in the captor.. A neutral flate by purchafing them would preclude the old proprietors^ or the ftate, from recovering by force their old terri- tory; or would force them to declare war againft the purchafer. Such purchafes therefore are always deem- ed contrary to the neutrality. r^fviolfir^pr. There is indeed one external right juftly under- j-on of lands. ci.{[QQf\ ^s attcndiug the violent pofTefTion of lands, catties, or cities; that all fervices, rents, or other annual payments, due formerly by any perfon or cor- poration to the old proprietors or governors of them, are now validly payed to and difcharged by the vio- lent poiTcffor; fo that the old proprietor or governor.
The Laws of War. gjo
if he recovers them again, cannot redemand the fame Chap. io. fervices or payments; nor look upon fuch fervices or'^^^'VN-^ payments, during the violent poilefTion, as any infide- lity or hoftility; unlefs they have been offered oflici- oufly, when they were not exacted by the affumed au- thority of the violent poflellbr.
But no deed of the violent poffeflbr can releafe from any future rents, fervices, or payments, or dif- charge any fuch obligations, beyond the annual term- ly payments during his poffefTion; fo as to preclude the claim of the old proprietor or governor when he recovers his former poffefTions. If he has by force or by threatnlngs compelled a debtor, whether a private perfon or a corporation, to pay fully a debt due to the corporation now violently poilelled, or to its o-o- vernor in his publick capacity; and that without any collufion, or fraudulent agreement with the debtor^ the debt is '* validly difcharged.
2. " Neutrality can be preferved only by giving 3,^^;^;^^'!;^ " help to neither fide in the war, or equally to both."^'^''"'^''-'^''''^-''* Hence if one fide is allowed to enlifl: volunteers in the neutral ftate, both mud: be allowed. If troops are hired out they mujft be hired out to both, if both de- fire them. And privileges of trade continued to both as they were before the war broke out. Military (lores muft be furnilhed to neither without confent of the other, who may perhaps demand the like fupplies^
* See a famous cafe of this kind In Qointilian, ///,'?. Orat. v. i o. where Alexander, af- ter the conqucft of Thebes, releafed a debt due by the ThefTalians to tlie Thcbans, with the decillorxof the Amphydiones-.
55o 77;^ Laws o/^War.
Book iil.ordinarily they are to be fenc to neither. Nor can the •v./"v^X^ neutral Hate fend even common provilions to any ci- ty befieged, or to any illand or coaft guarded by an hoftilc fleet of the other fide. Counterband goods, or fuch as are thus prohibited, may juftly be feized on the coaft, when it appears they were defigned for
the enemy. Howfrbroi- j£ ^ neutral ftate has been in an alliance offenfive fend fij>piics. and defenfive with both parties, and bound to fend quota's of troops to their affiftance, if the neutrality remains it can fend troops to neither. If its intereft allows it to quit the neutrality, it may juftly fend 'troops to that fid^ which has the juft caufe. All contrads about giving aids in war have always this tacit condition that " the caufe be juft." No treaty can bind to afTift in unjuft violence, Ncutraipics o. A third obvIous maxim is that " a neutral ftate tZ'LT'Vi!!'' fliould be precluded from no advantage it enjoyed *°;*j"J~'<« by either fide, on account of the war; except fuch ■'' as it made by commerce in military ftores:" all o- ther advantages of trade and navigation it ftiould en- joy with both. Thus the goods of any neutral traders found aboard the Hiips taken and judged prizes, Ihould not be forfeited. The neutral ftate had a right to freight ftilps from either fide; and, as it had a like right to hire out its fl"iips to both, tho' the enemies goods aboard neutral ftiips are juftly taken, yet the neutral Ihlps cannot be made a prize. Each iide may have a right to examine the neutral Ihips, and find if any of the enemies goods be aboard: but they have
ThehAWS o/War. 361
no right to feize either the fhips, or any parts of the Chap. 10. cargo which did not belong to the enemy. "^y^VKJ
There is one right, Hke thofe upon a plea of ne- cefTicy practifed and allowed; that either party in any fudden exigency may take any neutral Ihips in their ports, upon paying a reafonable freight for them, to tranfport troops or ftores upon any expedition.
In like manner no neutral ftate fhould lofe any right of mortgage upon the lands or territories taken by either fide from the other.
4. Another maxim as to neutral ftates is " that ko hofinitrn " they have a right to hinder either lide rrom com-,,,,/..^//?-/.. ^' mitting any hoftihties againfl the other, within the ^' neutral territory or its harbours; and to give pro- ^^ tedlion to any refugees from either fide.'' As the neutral flate is mafter of its own territory, its bays, and harbours, it has a right to prevent hoflilities of either fide within them ; and it is plainly its intereft to do fo, as they may be dangerous to itfelf or its fubje6ls. The taking of fliips in its harbours may in- terrupt or difcourage the trade, which the neutral ftate has a right to retain, with both parties. And the difcharging of artillery may be more pernicious to others than thofe that are aimed at. It is the part of a common friend to prevent all forts of violence of the contending parties, as far as he can; and every ftate within its own bounds has a right to prevent them. This right is allowed to extend as far as it has a power of commanding by the guns of its forts. Exercifing force againft enemies is always looked up-
Vol. il. Z z
^^2 ^^^^ Laws of \Yak.
BookIII.oi^ among the jura majeftatis, or parts of fupreme
^^^r-v'^^ power which no ftate has a right to within the bounds of another which is at peace with it. Thc^nunicn jx. As to refugccs from either fide, a neutral ftate
uju^ca^" "has a right to protect them for the Hke reafons. No foreign prince has a right to exercife any jurifdidion, civil or criminal, within the bounds of another ftate. If he or his ambafladors are allowed to refide in a nei"-hbouring ftate for fome time, they retain all their powers and rights in their own country, but have none where they refide, except what is allowed them by this ftate ; and by the cuftom of nations there feems to be allowed to them a civil jurifdidion over their own retinues, to decide any points of property deba- ted among their own fubjecls. Nay this right is al- lowed to confuls, who reprefent not a prince or ftate, but are agents for merchants at a foreign court, and appointed as judges in civil caufes by their prince o- vcr their countrymen. But as they have no jurif- diction, even in civil caufes, where foreigners are con- cerned; and for criminal jurlfdiffion, it is not allowed either to a '^ prince or his ambaflador over their own fubjedls or countrymen refiding with them in another ftate, as criminal jurifdiclion requires often the ufe of force.
ethics rccav. Thc xi^t and cuftom of nations is pretty general
(Jastocrimiiiah m , . r^*n 111* ill
indh::nin,^:s. in tliis mattcr. r oreign Itates are truly obliged by the
• Chriflina, Queen of Sweden, put to death, while (he refiJcJ in France, one of her 'fecretaries for betraying her counfcls. The French jullly rcfentcd it as an excrcifing iox<i in their country.
Treaties o/Peace. ^<-j
Law of Nature to give no protection to any infamous Chap. io. criminal, or notorioufly fraudulent bankrupt, who ^'-''''^^'^^ flees to them; they fhould deliver them up. And yet the ftate from which they fled has not a right to pur- fue them by force in the bounds of another country. If a ftate is zealous to bring them to juftice, a com- mifPion Ihould be demanded from the foreign ftate, and it is unjuft to deny it upon proper fecurity againft doing any damage to its fubjefts; and then the force is exercifedby the authority of the governors of that ftate. But as to fmaller criminals, or common bank- rupts, the cuftom received is on the merciful flde to- ward them; they are generally proteded, and feldom demanded to juftice.
As to ftate-criminals ; as frequently Q^ood men are ^'"'^"■'""'"'•^^
1 1/^'j • ••! in r-* always prclcc-
on both lides m civil wars and ftate-fadions, as well as'^ '• in folemn wars, the general cuftom is very humane, that they fliould univerfally find protedlion in foreign ftates ; and the refufal of delivering them up, or of allowing them to be purfued and taken, is never deem- ed a juft caufe of war, if, while they refide abroad, they are forming no new confpiracies or hoftile at- tempts againft the prefent governors of their coun- try, who ihould be fatisfied with their baniftiment, and lofs of their fortunes, and of the hopes they had in their native land.
X. The natural and humane way of ending wars rk- nature ^f is by treaties of peace; the nature of which, the juft'" '"' '^"'" terms of them, the obligations, and juft exceptions^ may be fuiEciently underftood from what was faid
2(<. Treaties of Peace.
BooKlII.upon contrails in the former book, and upon the ^-^'~v^riG;hcs ariling from the injuries of others; as all fove- reVn princes and ftates are with refpect to each other in a Hate of natural liberty. n-ccrcr^:hn 'j'l^Q exception indeed of unjuft force extorting a ^'J/!;'w l-^'^'-contradt is lefs to be admitted here than among pri- '*''"'■ vate perfons, whether the wars are folemn or civil to
which the treaty puts an end. Were this exception univerfally allowed, all treaties would be vain ; no ftate would reo:ard any promifes or engagements of another ; nor would contending fa6lions have any faith in each other; fmce either fide, whenever they inclined, could flill have this pretence to evade their obligation, that the contrail or promife was extorted by unjuft violence; and thus all old contraverfies would revive, notwithftanding any agreements or renunciations. No terms offered would ftop hoftilities. War muft end only by the deftruclion or entire conqueft of one fide. r / u,:i,s!i On the other hand ; fome wars undertaken by prin- '*■"' ces and ftates are fo manifeftly unjuft, without any
ihadow of right, which yet prove fuccefsful, that it would be hard to preclude a ftate, w^hich had been compelled by fuch unjuft violence to confent to the moft oppreflivc and iniquitous terms, from all redrefs cither for themfelvcs or their pofterity for ever, tho* they had the moft favourable occafion of ft^aking off the unjuft and cruel yoke. To do fo would give the greateft encouragement to unjuft violence, and make oppreilion everlatting without remedy.
We may perhaps juftly diftinguifli, between vio-
Treaties o/Veac^, ^6^
lence really unjuft, and yet founded upon fuch fpe-CHAP. lo. cious pleas and colours of right, as might have impo-v,/Wj fed upon men who truly intended to adt juftly accord- ing to the Law of Nature; and that violence which had no fuch colours of right: allowing a valid obli- gation to thofe treaties which were obtained by the former kind of violence; efpecially when it was con- du6led honourably, according to the humane cuftoms of civilized nations, and when the treaties contain no terms m.anifeftly inconfiftent with the plain laws of humanity, and with the fafety, and thefe natural rights of a people which are neceflary to fecure all valuable enjoyments of life. But for trearies extorted by violence manifeftly and avowedly unjuft, and con- taining terms quite inconfiftent with equity, and all fecurity or fafecy of the people defeated as to the na- tural enjoyments of rational creatures, they can pro* duce no obligation.
No doubt after all the decifions men can give, con- Kopredfede- traverfies may ftill remain: What are thefe fpeciousXTJ^^'^.'^ colours of right which plead for the validity of con- tracts extorted by unjuft force? What fort of terms are thus inhumanely opprefTive? where there is no com- mon judge there is no refuge but to mens own con- fciences, aad fenfe of humanity, and juilice, and to wife arbitrators, or neutral mediators, under no atj^ tachments of intereft to either fide.
XL There are many divilions of treaties; fome arc pcrfonal, entered into out of affection to the perfon ■'"'""' of the prince, and fabfiiling only during his life. O*
Div'.f,:,:i cf
^55 Treaties o/Peace.
Booi; iri.thers are called real, when they are made with a prince o^/^v^or ruler, as he reprefents and acls in the name of the body politick, which never dies. The obligation of thefe is perpetual, where no limited term of years is expreffed. Some are equal, binding to equal per- formances, or fuch as are proportional to the wealth of the ftates; and others unequal. Of the unequal a- o-ain, fome, tho' burdenfome to one fide more than the other, yet make no diminution of its fovereignty or independency. Such for example, as bind one fide to refund the cxpences of the war, to deliver up ihips, or frontier towns, or to quit certain branches of trade, or even to pay certain fums annually. Notwithrtand- inf^ of fuch burdens, the ftate may exercife within it- felf, and with other nations, all parts of the fupreme power; other unequal treaties diminilh the fovereign- ty: thus if one confents that appeals fliall lie in cer- tain caufes from its own courts to thofe of the other Hate, or that it fhall not make war without confent of the other. The terms of thefe treaties fuggefl the obligations on both fides. ihjiag" -^b jj-^ confirmation of treaties in former ao;es hofta-
i« aijuje. O
ges were frequently given. But as they can give no fecuricy unlefs a nation were difpofed to commit a great piece of barbarity, in punilhing the innocent hofiages for any perfidy of their country, to which they had no way contributed ; the cuftom of demand- ing or giving hoftages is laid afide. P' '^'l '^ XII. Treaties and confederacies of all forts are ma-
timbojjtidori, &c
aaged by ambafladors, envoys, and plenipotentiaries,
Rights o/'Ambassadors. 567
perfons employed to tranfacfi: fuch matters in the name Chap. 10, of a ftate. The rights of all thefe perfons, according ^->^VV^ to the Law of Nature, are the fame whatever names or external dignities they may obtain, if they are fent to any ftate in the name of another, great or fmall, which is not dependent on the ftate to which they are fent.
This right, in the firft place, belongs to all who arc ricwpcrfcn^. fent with any publick meflages in peace or war, that'"' their perfons fliould not be violated; but they Ihould either be allowed to refide in fafety while they offer no violence, or, if this is refufed, to return unmolef- ted. The greateft enemy, even upon the jufteft pro- vocation, is obliged to liften to propofals from the other fide, as his right is not infinite; and there are certain propofals which when made he is obliged to accept of, and defift from hoftiUties. No propofals could be made if the perfons, who carried them, were not allowed prote6tion.
A ftate indeed is not obliged by the Law of Na- Nonat,raichiu ture to allow the ambaiTadors, envoys, or refidents ofi!'';;^^'f,,''j"^ other ftates to continue in its territory; fuch perfons "'"^'f'^^' ^"^ always a6i: the part of fpies if they are diligent in^^'^ «••'""- their trufts: and they may be refufed accefs to it without hoftile intention. But as the advantage is e- qual to both fides againft each other, where they are mutually allowed; and as by their means many diffe- rences are fpeedily compofed which otherways had broke out into wars; it is nov/ the cuftom of all ci- vilized nations to allow them mutually, and to give:
T(58 Rights o/'Ambassadors.
Book in. them full protection while they commit no hoftili- V-^V"V^ ties, or form no confpiracies againfl the ftates where they refide. Trb.:t rr-ni- Tkc Law of Nature enfures to them no other pro- ius\ZIZv"'htc6iion, previous to fome cuftom importing a tacit ;*;;^f''"'^ -'"''■ convention, than that which every civiUzcd flate gives to its own fubje61s or to any private foreigner who refides with them for pleafure or commerce. An ac- tion would lie againfl them in the courts qf the ftate where they rcfide for any debt or crime, as againft any private foreigner. And if they were, and conti- nue natural fubje6ls of the ftate they are fent to, they are juftly treated as its fubjects ftill; tho' employed as factors for others. Their employment as it is of great dignity and importance, would indeed entitle them to Q-reater deference and external marks of ho- nour, than they could have claimed in their private capacity: but it gives them no further perfed right without fome convention exprefs or tacit. TThat h th ^^^^ ^ pretty general confent of civilized nations has Tvji.m of nr.ti givcn a grcat number of other privileges and immu- nities to them, their families and retinues ; the fettling of which makes a confiderable part of the * publick Lav/ of Nations, as it is called, which is founded on tacit conventions, declared by general practice, and by the refentment exprefTed at any nation which vio- lates it. And yet as to moft of thefe laws any nati- on by a timely premonition of its neighbours that
* The curious may find them in Wiqucforfs AmhaJJadorf and Bynker(hoek de forf higttti, and other authors.
Rights ©/'Ambassadors. 36^9
it neither Infifted on fuch privileges to its own am- Chap. 10. bafladors, nor would give them to thofe of other na- '^/VX>' tionSj might free itfelf from all obligation ; fome of them indeed are founded on reafons of humanity; but many others merely on capricious cuftoms, and the vanity of princes.
XIII. There are humane reafons for one cuftom, al- yimhjf.domf mofl: univerfally received of late, that '^ amhaff^dovs Jc't/oincourt,'. " envoys and all who acl for nations independent of " the ftate to which they are fent, *are not fubje6l " on account of their refiding in any ftate, to the " courts of that (late, in any aclion civil or criminal." Nothing more is allowed than barely the necefTary de- fence againft any outrage of theirs, or any confpira- cy. All right of judging and puniiliing is referred to the prince or court to which they were formerly fub- ject. There is an equitable reafon for extending this privilege beyond the ambalTador's perfon even to all his proper family; fuch as his wife, children, fecreta- ries and necefTary domefticks; fince by the w^ant of them, or by any vexatious proceffes againft them, he might be diftreflcd or hindered in his bufinefs. If their conducl is oftenfive they may be ordered to with- draw, and juftice be demanded againft them from the ftate which fent them, the refufal of which w^ould be a juft caufe of war. The reafon for the privilege is this, the moft vigilant ambafladors do generally moft oppofe the interefts of the courts where they refide, and are the leaft popular in that country; and there-
* Legatus 72071 77iutatfo7-:i7n.
Vol. IL A a a
.,-rQ Rights o/^Ambassadors.
Book Ill.fore would have the worft profpecl of a fair trial, or ^yv'V^of a juft fentence upon any civil action or criminal procefs againfl: them.
At the fame time, if an ambaflador trades where he refides, or incurs debts by contracts of merchan- dife, or by bonds ; there is little natural reafon why he Ihould not be fued and compelled to do juftice to the fubje6ls of the ftate where he refides. If he is fuf- picious of the partiality of the courts, let him abdain from voluntary contracts. There is ftill lefs natural reafon for the immunities of all gentlemen of his re- tinue in fuch cafes. It would be highly proper that he gave a lift of his domefticks upon his admifTi- on, or upon adopting any more into his family; that the ftate where he refides might judge how far it was proper to extend its prote6lion to fuch numerous re- tinues. Hh hr.fe no \\\ Hkc iiianncr, there is no natural reafon for making '^'uTLIrl. 'his houfeafancluary to any but the neceflary domef- ticks allowed him : much lefs that it ftiould skreen any fubjects of the ftate where he refides from the execution of juftice, and thus limit the power of the ftate over its own fubjects. But fuch claims have of- ten been made by means of an unnecelGTary notion that the ambaftador reprefents the perfon of the prince who fent him, and Ihould be treated as fuch; or repre- fents a free and independent ftate, and muft have a like independency, immunity from the power of the ftate he is fcnt to, for all who attend him of every , character.
Rights o/'Ambassadors. 371
XIV. From this alfo arife the claims of fuperior Chap. 10. dignity, and the precedency of the ambafladors of ^../"VX^ different nations. Thefe are all arbitrary matters, de- The precedccy pending on cuftom or convention. It would be as j^^/^""'-"-^-"^'"* rural that ambaffadors fhould take precedency accor- ding to their feveral perfonal dignities, if we could well compare the feveral perfonal dignities of men of quality, in diftercnt nations, with each other. And this indeed is as eafy as fetthng the dignities of dif- ferent princes. Names are of no avail in this mat- ter. A duke of RufTia or Venice and a duke in Bri- tain, a marquis in Britain and one in France arc of very different dignities. The kings of Britain were once of higher dignity than emperors of Conflan- tinople, or fome Weftern Emperors in Rome. All rights of precedency among independent princes and ftates, or their ambaffadors, muft depend on fome a- greement or old cuftom. Were we to follow natural reafon, thefe ambaffadors fhould have the hiehefl: dignity who reprefent the wifeft and beft conftituted ftates or polities ; as thefe are the moft honourable bodies politick. Superior force, ftriking terror in all around, often engages nations to give up thefe mat- ters of ceremony to the moft potent. Abfolute here- ditary Monarchies, and Oligarchies, have the weakeft pretences to dignity.
A a a 2
oif frcefnn:th: hnd.
CHAP. XI.
The Duration of the Politick Union;. and the Conclusion.
I. np'HE duration of a political union, and of a ci-
A tizcn's obligation to his country may be de-
Thc j«r,;nc«tcrmined by thefe confiderations. i . As this union is.
,/r/r;>.///,c«/^^(]g;ncd for the o-ood of all, it is oppreirive in any
union, o O ^ '- J
flate, where it is in no danger of decay, to detain any fmall number of citizens, who have a rational pro- fpe6l of a better condition elfewhere, \vhile the ilate irhcnfuij^nsiuScxs no confiderable lofs by their departure. It mud be a wretched plan of polity, or very unfaithfully ad- miniftred, which can tempt any great numbers to de- fert it, contrary to fo many ftrong natural tyes ; and in either cafe, if proper remonftrances cannot obtain a rcdrefs of fevere grievances, the citizens have a right to leave it, as the natural conditions, either expreffed or impHed, upon which they aflbciated are broken. To defer t a good affociation, wifely adminiftred, when it falls into any diflirefs by foreign force, is highly cri- minal; and the ilate may reflrain its fubjeds by vio- lence, as they arc facredly bound to fupport it at all hazards.
Men banillicd for ever, on account of crimes, are no longer fubje^ts. But a temporary baniihment or relegation into any remote province fubject to the ilate's jurifdiclion, does not take away all right of the ftate over fuch corrupt members.
The Dissolution (^/"States. 373
II. While aflate can protedl allies members, it is Chap. h. under the moft facred obligations to do it. It may in- ^^-^'^^^'^-^ deed under the utmoft necefTitv, when the whole can- ^'^f'^'^fi''^'
-' v,M,i.x jj bound to pro-
not otherways be late, bind itfelf by contract not to ''^'•''^' -?""''• proted any further a fubje6l, or a certain dlllrlct, de- manded by a victorious enemy. But this deed cannot preclude the fubjecl:, or the difl:rI6l:, from taking any other refuge: their bond is diflblved. An hero per- haps to preferve a country would deliver up himfelf ar facrifice.
When the majority of a ftate confent to change a./.:«.w« the polity in fome eflential parts, upon which the fafe-
cf p'Jitl free
ty and profpericy of the fubjecls depended, in com- pliance with an invader or ufurper, or out of any fu- perftition or folly; fuch as diijent have a right to with- draw with their effects into any other country ; or to aflbciate by themfelves : nor can they be retained upon any pretence of the old contract, fmce the eflential articles are changed without their confent. A man acts unjuflly who difl^ents from any wife and ufeful change of the pohty ; and yet it would be hard to ob- lige him by forcC; without fome great necelTicy, to re- main a citizen.
But all real treaties formerly entered into with other nations retain their full force after the chano-c, fo do all publick debts and claims on both fides.
III. If a ftate is by force fubdued to another, the rA^r . ««^'«.y? majority of the conquered have no right to retain any)>l of the old citizens who incline to remove. Any parts of the vanquillied frate n:iay aflcrt their liberty and in-
ds are
njA y^^^ Dissolution of States,
Book III. dependency, or unite with any other ftate they incline*
v^/"W^ The former bond is diflblved by the failing of an ef-
fential condition. It is indeed very unjuft in any part
to defert the body, while there is any hope of fup-
porting it.
If a people once intirely conquered fliould upon any unexpected emergence fpeedily recover its inde- pendence, it is the duty of all its citizens who have entered into no new political bonds to return to their former union, if the terms of it were equitable. But if they were not, or if any parts have entered into new polities, by contracts againfl: which they have no jull exception; as the former bond was diflblved by the conqueft; all their new tranfacflions are obligato- ry, in which they adled juflly according to the pro- babilities then appearing to them. ctjlerfd"'^'"d ^^ ^ people conquered for fome centuries, and re- 7"^'7"'-f"V'duced into the form of a province, fhould afterwards
aeptndiucy, does ^ J- ^ "^
rot acquire c'/find an opportuuity of afferting themfelves into in- wr »/i^fr /Wi.dependency again, and that with all juftice; it would be * ridiculous in them to claim any right in diftrids or provinces long aflbciated to other ftates, or fub- fifting by themfelves; upon any pretence that thefe ftates or diftri^ls were formerly aflt)ciated with their anceftors or fubjedl to them, when they were a free and flouriihing ilate. The conqueft diflfolved all thefe bonds, and left thefe diflrids or provinces free to con-
* See a long examination of the vain pretences of Charlemain and his fucccfTors to all the dignity and rights of the Roman emperors in virtue of an elcdion by the
citizens of Rome in Crothis De J. B. et P. I. a. c. 8. and in Gronoviusand Barbey raque's Obfervations.
7^/5^ DissoL UTioN o/^Stat£s. 375
fult their own fafety. Such claims are ftill more ridi-CnAP. n. culous on this account that after a few centuries and the changes which happen upon conquefts long con- tinued, the people can have little other pretence of calling themfelves xh^Jame with their predeceflbrs in* that land, than this that they live upon the famefpot of ground where the antient ftate was. But it is ovv^n- ed by all that as the people or ftate may remain the fame in a new climate far from their old lands ; nay without any lands, when they are aboard their ihips or marching through defarts ; fo the new poffeflbrs of the fame lands may be a ftate or people quite diffe- rent from the old.
When a ftate is once entirely conquered without a probable profpe(5l of recovering its independency, all the old conventions of the people about a poli- tical union are in the cafe of contracts entered into about what afterward becomes impoHIble to be exe- cuted on one fide, and therefore do not bind the o- ther. The fame is the cafe of the contracts by which certain diftricls became provinces upon condition of prote6lion from that ftate which now cannot protect itfelf.
III. While the political union fubfifts, the ducies of citizens, which arife either from the general rela- tion to their country and fellow-citizens, or from par- ticular ftations and offices, are known by confidering the true ends of the union, the riehts of their eover- nors, and the laws of their country, or the nature of any fpecial offices they bear in it*. It is fupcrfluous to
-jyg The Conclusion.
Book III. heap up common-place maxims, well known, but of difficult application to particular cafes; a good mans heart will always be zealous for the intereft of any innocent affociation for a publick intereft, in which, by the Divine Providence, he is engaged ; and will look upon this fituation of his fortunes as the voice of God directing him to that part of his fellows who (liould be more peculiarly the objedls of his afFe6lionate con- cern. And he will always remember *, that in any to- lerable conttitution, he and his fellow-fubjeds owe in- numerable advantages to the civil poHcy, to the laws, and to the whole body; even all their civilized edu- cation, their fafety, their continual protection from innumerable injuries, and almoft all accommodation^ and pleafures of life. They ought therefore to ftudy theprefervadon and improvement of thisconftitution, and the general intereft of this body, of which Divine Providence has made them a part, and recommended it to their zeal by all the generous principles in their foul. No worldly intereft of ours, not life itfelf, ftiould be reputed too dear to be facrificed for its preferva- tion; fmce in it is included the fafety and all exter- nal happinefs of great multitudes, both in the prefenc age, and in thofe which ftiall fucceed.
The Conclusion.
rhuhmraiu- W . YxoiTi thcfc gcncral principles of the publick
' law of nations, as from thofe of the private law re-
fpecSting individuals, we muft difcern the wonderful
footfteps of Divine Wifdom in the conftitution of our
* See PicUo's Critc,
coi.irtvji.cc our r.a:
The Conclusion. 5J7
fpecies. Since it is by following the very principles oFchap. i i. our nature, the afFecftions and feelings of our hearts, in»s^^V^> that regular fubordination of the more limited to the more ex tenfive, which our inward moral fentiments re- commend, and by the delightful exercife of the powers of reafon which we are naturally prone to, that we ob- tain and fecure to ourfelves and others both the no- bleft internal enjoyments, and the greateft external advantages and pleafures, which the inftable condi- tion of terreftrial affairs will admit.
But that we may not deceive ouifelves with falfe '^^'^''^f'':
... of erery tbmg tit
hopes, imagining a more ftable external happinefs to'--^-'^'"-'^- be attainable by individuals or ftates than nature will allow, and thus difplace our fouls from the only folid foundation of reft, tranquillity, and joy, inthcftable perfuafion of a good Pro vidence,governing all well,and fecuring true happinefs to every worthy foul ; in refig- nation and truft in it, and in the confcioufnefs of our own conformity of difpofitions to this fupreme Excel- lence ; it m.uft be of confequence to attend well to the tranfitory, changeable, and perifhing nature, of every thing external.
States themfelves have within them the feeds off ^^f/'^7'
til tkeni the natit-
death and deftruction ; what in the temerity, impru- '"'":"'" "■/'''■/'• dence, or fuperftition of the firft contrivers; what in the felfifh, ambitious, or other meaner paflions of the governors, and their fubjeds, jarring with each other and among themfelves ; what in the oppofitionsof thofe feeming interefts which fuch pafTions purfue; what in the weaknefs and inconftancy of human virtues; and Vol. II. Bbb
^-^8 ^^^(^ Conclusion.
Boo-^ Ill.in thepronenefsof mentoluxuryand prefent pleafures, wichout attention to the confequences. Thefe feeds, alono- with external force, and jarring national inte- refts, have always occafioned the diffolution and death of every body politick, and will occafion it as certainly as the internal weaknefs of the animal body and exter- nal caufes will at lall bring it to its fatal period. Good men indeed ftiidy, by all the art they are mafters of, to wai-d off and delay thefe cataftrophes, as long as they can, from their friends or their country; fuch kind of- fices are the moft honourable and delightful employ- ments they can have while they live. But he muft little think of the order of nature who fees not that all our efforts will be defeated at laft, whether for the pre- fervation of individuals, or of the body poUtick. ^ , Nineveh, Babylon, Ctefiphon, Perfepolis, the E-
LlyL'lr'^gypti'^^^ Thebes, Carthage, once the feats of grand unwieldy empires, are now but obfcure antiquated names: Athens, Sparta, Crete, Syracufe; the feats of ingenious arts and policy, are now the almofl: defo- late feats of Barbarians. Here we have no continuing cities. Compare the fliort periods of their fubfiftance with the immenfe tide of duration which paflTed be- fore they were known, or with that other boundlefs infinitude to enfue after they are gone and forgotten ; and the moil potent durable empires will appear tran- iitory and but for a day. .^xf.r.-,,; ..,.>;- Confider all external thinQ;s and enjoyments. We
...rtund.iJvaa. r • ' ' 1 '1 r "1 1 •
.,n. « itcuii are ipirits carrymg about with us trail decaymg putri-
j>Zfi'/ ' ''^fying carcafcs; that as yefterday were embryoes, and
Ihall in a few days be earth and bones. Our fenfual
T!:cir iiiration
The Conclusion. 0-70
pleafures are mean, pafTing in a moment, and often Ch a fliameful. Our grandeur and wealth are impofture,' played upon ourfelves and others; an oftentation of happinefs and fecurity, while we have no other avenues to pleafure than the vulgar, and remain expofed alono- with them to all the fame great calamities of life: to the fickneffes and death of fuch as are deareft to us, and their worfe corruptions by ignorance, ingratitude and other mean difpofitions of foul ; to all the fame pain and weaknefs both of body and mind ; and, foon- er or later, to that uncertain period which may furprize us every moment, when we muft quit all our earthly poffeflions, return into that filence we were in before we exifted, and our places fliall know us no more. If we are remembred for a few years, it is but in a little corner of the world ; to the reft of it we are as nothing : and, in a few more, both we and thofe who remembred us fhall be forgotten for ever. Grant we were always remembred; what is that to us who know it not?
Nimrod, Ninus, Cyrus, Alexander, Caefar, Char- lemain, Gengifcan, what fenfe of fuffering have they Si now, when many repute them odious monfters, the fcourges, the plagues of mankind? What joy have they in being called by others heroes and demi-gods ? Thefe moft obvious and certain rcflecSlions, frequent- ly recalled, muft abate thofe keen paiTions about world- ly interefts which fpur on the ambitious to all oppref- fions, and raife thefe wretched contentions which dif- turb and at laft deftroy the beft human polities.
They muft have an effecl yet better on an atten-
1 1.
Grandeur ar.A f'lmc arc but
The hop a of &.
tlvemind. An omnipotent and good God governs the '"
^8o The Conclusion.
Book iil.\vorld. By the whole ftruclure of our nature we feel ^/V>^his approbation of vh'tue, his engagement on its fide. He has at the fame time formed our fpecies capable of thofe obvious refleclions and extenfive view^s into infinitude, which fliew the meannefs, the vanity, the emptincfs of all worldly enjoyments; he has implant- ed in our hearts natural delires, nay ardent affections, toward a more noble and lafting happinefs both for ourfelves and our fellows, and that in the moft exten- five fyftem; and recommended thefe affeClions to us, and all beneficent actions flowing from them, as our greateft dignity and perfection, while yet this world cannot gratify thefe defires. Our advancing in this pcrfe61ion w hich he recommends makes a future ever- laiting flate after death appear as a part in his admini- rtracion neceffa ry to make our hearts approve it ; and ne- cciTary too to all generous folid joy of a rational crea- ture, Vv4io has natural afFeCtions toward its kind. His providence has fo ordered, that this hope, this defire is not peculiar to the wife, the learned, the civilized ; but has ever been diffufcd among all mankind. Need we then diftruft that omnipotent and bountiful hand, which fatisfies the defires of every thing that liveth ? No. LK^t us trull in him, and be doing good after his exaniplc: and, as we fee that all flates and cities upon earth are unftable, tottering, and prefently to fall into ruins. Let us look for one that hath a solid
FOUNDATION, ETERNAL, IN THE HEAVENS J WHOSE BUILDER AND MAKER IS GoD.
THE END.
K;i-^^ »
UNIVERSITY OF CALIFORNIA LIBR VRY
T IS Anire' "s
\^
.ajiivjjo'
3'
Jili
SOUTHERN REf03^,,^^3Uo the V.brarv
W-Flfrv
^:iii:)Nvsoi-
.^.^F-CAIIF:
■^/^Jl]
<ev^-LIBRARY^^-, ^Ul;
iLir
■0
"ft^r^
)
ir.
o /'"
AS =(^
JiijaNvsov^"^
('c^
lA'CTTRv ' j.OFrAIIFnP.i/, j.OF-C
^
^,:
^
•ii
niVDjo'^
>- <
^WEUNIVER%
<^mm\L
CAliFOfti^ ^OFCAIIFO;
Irri'
ivaar:
4?
L^
iz
s^ \-r
D 000 005
|]WV'
-" o
2^
ill iv'\^
^<7,,
■//sy^hx-r
23"
3^
u:v' i:A.i:--i^
o ^-^
I, If) lUV
^
BRARY^^,
.^^•IIBRARYQ^^
^ 1 J
CAIIF0% ,.5.nFCAllF0;?{/,
4^1 ■
^j!
2^'
31:
IDNV-SOi UNIVERS/^
'■'/sawiNni
^1
IBRARYO/r, ^^IIBRARY^?/
^ ^'^ J V
jiwj
CALIFOPir, ,<.OFCAllF0/?,d
s^lOSANCEi,^' o
, ^;U.!3•,\-^^JL_
/'r\ii \ iiir^
^OF-CA1IFO%
-;V'
u
M >(
■ fS t
sT'^^Mi
:XK20
^ |
■ ■ ■ ■ 1 ■ ■ |
T^ |
■ ■■ |
■ !■■ ■ ■ |
ifv yl^Xi^X^%-
1 • wn -
:\rJ
W'M^ ■■■ i ^
:w