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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-^^      » 


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